Banning My Boomstick

Today the Supreme Court of the U.S. (SCOTUS) heard oral arguments in McDonald v. Chicago, a follow-up Second Amendment case to 2008's Heller v. D.C.. The status of the Second Amendment is uncertain, so constitutional scholars are following this case closely. But McDonald isn't just for dorks! Here are some reasons why you should care about the outcome of this case:
1. If you are Lil Wayne: if this case applies the Second Amendment to the states, there's a good chance that next time you're busted on your tour bus it'll just be for the coke and weed! Not your guns! Watch out, America, ridin' dirty could get a little cleaner.

2. If you are NOT Lil Wayne: the outcome of this case may (if SCOTUS decides not to be pussies) tell us if states are allowed to prohibit gun ownership. 

So, now that you're interested and not just reading this because your DSL is being super slow and your porn is taking forever to load, a little explanation about what's is up with the Second Amendment.  To ensure you're engaged, I'll also insert pictures of some hot chicks with guns. But seriously, it's kind of interesting:

Basically, the Framers of the Constitution intended our country to be way more federalist than it is today (ie, the states had lots of power and independence). So, when they drafted the Bill of Rights, those rights only applied to the federal government. After the South tried to secede during the War of Northern Agression (jk, the Civil War, lol), Congress was like, "maybe we should add a bunch of Amendments?"

The juiciest of these is the Fourteenth Amendment, which, despite reading pretty simply, has a few clauses in it that have completely changed U.S. law.  One such clause reads "nor shall any State deprive any person of life, liberty, or property, without due process of law."  This is known as the "Due Process Clause."  It may not seem like much, but it has been used by SCOTUS to authorize just about anything they can possibly think of.

But wait, you're saying, I'm no mathematician, but I thought we were talking about the SECOND Amendment not the FOURTEENTH Amendment!  Yeah, you're right, chillax, there's more. So, after the Civil War, it started to seem pretty dumb that all these awesome Bill of Rights Amendments only applied to the federal government. SCOTUS finally decided to say that the FOURTEENTH Amendment, via the Due Process clause, could APPLY the other Amendments to the states, i.e., incorporate them.*

But SCOTUS isn't always as smart as we give them credit for, so instead of incorporating all of the Amendments to the states at once, they did it one by one (and sometimes sentence by sentence - the First Amendment alone took at least half a dozen cases to be incorporated).  So guess which Amendment hasn't been incorporated?  THE SECOND AMENDMENT RIGHT TO KEEP AND BEAR ARMS! And that very issue was argued today before SCOTUS!! And we don't know what's going to happen!!!

Suspenseful, right???

SCOTUS has been notoriously lame about addressing the Second Amendment.  In 2008 (more than 100 years after the court started "incorporating") they FINALLY heard a case purporting to incorporate the Second Amendment, Heller v. D.C..  But they sucked it up -- while Heller was considered a victory for gun-rights advocates, all it really did was say that the Second Amendment applied to individuals, not just the military (thanks to some super annoying reasoning about "prefatory" and "operative" clauses).

So, the decision in McDonald has the potential to change a whole lot: SCOTUS could finally incorporate the Second Amendment, restricting states' ability to ban guns, or they could deny incorporation once and for all, leaving states free to regulate guns as they please.  Either way, there's a huge possibility that McDonald v. Chicago will help the Second Amendment go out with a bang.

*There was originally another option to apply the Amendments to the states, the "Privileges or Immunities Clause" of the Fourteenth Amendment.  But The Slaughterhouse Cases put the kibosh on that in 1873.  Some people think Slaughterhouse should be overturned and we should reevaluate Privileges or Immunities, but it seems unlikely that SCOTUS will go that route. However loosely it fits, we're probably stuck with Due Process.
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March 3, 2010 at 1:51 PM delete

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Makes a lot more sense to use that than "nor shall any state deprive any person of life, liberty, or property, without DUE PROCESS of law." But wait, the Supreme Ct. has been ignoring that ever since the 1870s.

March 3, 2010 at 2:46 PM delete

To amend my comment, which was written before I'd read the footnote, it is indeed highly unlikely anyone other than C-Train will say anything in favor of taking the Privileges and Immunities route.

What's disturbing is that this will probably be a 5-4 decision, just like Heller.

March 3, 2010 at 3:26 PM delete

And what is fun is it looks like the SCOTUS will incorporate the 2A but then say that states still have some right to regulate it through their police power. So, that means we get to watch courts spend the next 10-20 years defining the limits of states' ability to regulate gun rights.


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