Notwithstanding what you know or believe you know, it is the application of the Supreme Court’s so-called “incorporation doctrine” and not the 2nd Amendment which was the focus of the case striking down Chicago’s gun ban. In McDonald v. City of Chicago the Supreme Court decides that state governments may not deny you, as represented in the case by Otis McDonald, the right to own and have a hand gun in your own home. This is only an extension of the 2009 case, District of Columbia v. Heller, in which the Court held that the individual right to own a gun is protected against federal infringement.
Otis McDonald
It is surprising to most that once Heller was decided that McDonald even needed to be addressed. However surprising, the Bill of Rights was not originally intended to apply to the states but was designed only to restrain the power of the federal government. The Supreme Court recognized this fact in 1833 in a case holding that the City of Baltimore could take private property without compensation to the owner which would otherwise have violated the Fifth Amendment’s takings clause, to wit: “. . . nor shall private property be taken for public use, without just compensation.” The need for the Court to decide whether the 2nd Amendment, once found applicable to the federal government, also applies to the states seems a non-question to most Americans. That this issue would even need to be addressed by the Supreme Court seems odd and anachronistic in a world in which the federal government is universally considered the master and the states the servants. This is their emotional reaction even though many are intellectually aware that the First Amendment provides,
Congress shall make no law respecting an establishment of religion . . .” etc. [Emphasis added.]
We the people have just not followed the arcane legal basis of the evolution of the Bill of Rights into being generally applicable to the states as well as to the federal government. There’s been no popular press coverage of this legal issue. It has happened almost silently as far as the public is concerned.
There are four different opinions in McDonald written by the nine justices and they cross reference things they agree with in one another’s opinions. Therefore, there are more than four opinions held by the nine. Wow, huh? So much disagreement over such a fundamental issue of our constitutional fabric of which the public is almost totally unaware. How can this be? What happened that there is still such a broad divergence of opinion on the Supreme Court in 2010? Why hasn’t this been solved yet after about 220 years. What has changed? Why aren’t we all on the same page about this by now?
This is why. The “what happened” is the adoption of the Fourteenth Amendment in 1868, passed in order to protect former slaves from the actions of the seceding states in the wake of the Civil War. The Fourteenth Amendment explicitly modified the thirteen previous amendments and the power sharing envisioned by the rest of the constitution when it provided:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
We’ve been struggling for 132 years with the ramifications of these words. How do they apply and what do they restrict? Do these words amount to a “fairness” requirement for life in the US with the federal courts acting as umpires? How does the 14th Amendment’s protection for the privileges and immunities of US citizens as well as the due process and equal protection of law interact with the “rights” of US citizens some of which are protected in the Bill of Rights? What are privileges and immunities anyway? How does the 14th Amendment dovetail with the first eight amendments and especially the Ninth which provides as follows:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The broad language of the 14th Amendment is subject to expansive interpretation by federal courts when they are asked to provide protection against actions of the states. Into the breach, to remedy the lack of specificity of the Fourteenth Amendment, the Supreme Court has thrust a doctrine which correlates the due process requirements of the 14th Amendment with the protections provided by the Bill of Rights. The so-called “incorporation doctrine” effectively grafts (incorporates) most of the individual rights protected by the Bill of Rights into the 14th Amendment, a doctrine which is then used to restrict the ability of the states to manage their own affairs. As such the ‘incorporation doctrine’ has effectively been used to limit the power of the states since at least 1933. It is the use of this doctrine in this manner which has been decried by many as federal courts “legislating from the bench.”
I find myself in substantial agreement with Justice Stevens dissenting opinion in McDonald. This is odd since it is people philosophically aligned with me who complain most bitterly about federal courts “legislating from the bench.” We do not usually agree with Justice Stevens. Stevens in his dissent argues for restricting the scope of the 14th Amendment in a principled fashion without reliance on the fact that certain individual rights have been protected by the Bill of Rights, to wit:
The question we should be answering in this case is whether the Constitution “guarantees individuals a fundamental right,” enforceable against the States, “to possess a functional, personal firearm, including a handgun, within the home. That is a different—and more difficult—inquiry than asking if the Fourteenth Amendment “incorporates” the Second Amendment .
Showing the partisan divide of the Court while writing for the plurality Justice Alito spurns Stevens’s outreach to reconsideration of decades of poorly reasoned precedents calling his dissenting opinion “eloquent” but, with a nearly visible sneer, stating :
As we have explained, the Court, for the past half-century, has moved away from th[is] . . . approach. If we were now to accept Justice Stevens’ theory across the board, decades of decisions would be undermined. We assume that this is not what is proposed. What is urged instead, it appears, is that this theory be revived solely for the individual right that Heller recognized, . . . [Emphasis added.]
Alito may be correct as to duplicitous motive behind the Stevens dissenting opinion. Such a motive is made more likely because Stevens is now retiring from the Court and will not be voting to reconsider earlier precedents on the basis stated in that dissent. (Among hundreds, subjects of reconsideration would be cases involving school prayer, abortion rights, rights of homosexuals, and even the rights of free expression of high school students). I am not naive but it seems unfortunate to me that a non-partisan outreach to reconsideration of decades of questionable decisions could not have been accepted at face value and honored for what might have been.
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