The Unforseen Victory from McDonald v. City of Chicago
June 28, 2010
by Michael D. McFarland
Today, the Supreme Court ruled along predictable ideological lines in favor of protections of individual gun rights and against the City of Chicago’s law banning handguns. Much has been made about the National Rifle Association’s lobbying efforts and seemingly overreaching influence. The court ruled on the same side of this case as the NRA fought for. The basis for the ruling came down to a protection of rights guaranteed under the Second Amendment to the Constitution, which states:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Many regard this as a conditional privilege and those who hold that opinion point to the “well regulated Militia” part of the Amendment to reinforce their case. On the other hand, many regard this as an unalienable right of American citizens as evidenced by the “shall not be infringed” part of the Amendment. Both positions are worthy of valid debate.
What the Supreme Court relied on today in their ruling is Section 1 of the 14th Amendment, which states:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.”
What’s important to note is that the Supreme Court reinforced the power of this clause by using it as a basis for their ruling. What should stick out to everyone is that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”. By reaffirming this section – even if the justices in favor of today’s ruling only meant to reaffirm a particular provision of this section – they have strengthened ALL of it. That means that they strengthened the “nor deny to any person within its jurisdiction the equal protection of the laws”.
What does that mean to ‘We the People’? Well, it means that the 15th Amendment, which pertains to racial discrimination in voting, is strengthened. It means the 19th Amendment, which pertains to a woman’s right to vote, is strengthened. It means that the 24th Amendment, which pertains to prohibiting poll taxes, is strengthened. It strengthens these by the reaffirmation that these rights cannot be infringed upon by any law of the State.
Where this will be evident is in Arizona as it relates to the recent immigration law and the 4th Amendment, which pertains to illegal searches and seizures. The moment a single US citizen of immigrant origin is detained because he cannot provide proof of citizenship and his rights are therefore violated, he has an immediate case against the state and the Supreme Court today reaffirmed that citizen’s protection from the laws of the State of Arizona. As if the law wasn’t already unconstitutional because it assumes Federal responsibilities to the State, this only sets the precedent that it is now unconstitutional at the individual level.
It will be more evident in the right to privacy that was reaffirmed in Roe v. Wade. Remember, that decision was tethered to the right to privacy as guaranteed by the 4th Amendment. While the case did rule on the basis of “viability” of the fetus, the fundamental basis of that case was privacy. That’s right. Roe v. Wade was a ruling of privacy. Therefore, based on today’s ruling, Oklahoma’s recent legislation that would publish women who get abortions is a direct violation of person’s privacy due to a State law.
Now that the Supreme Court reaffirmed Constitutional protections and rights for the individual against the States, where will the implications be seen beyond Arizona, Roe v. Wade and Oklahoma? Can a legal argument be made that dry counties (counties where the sale of alcohol is prohibited) are a violation of a citizen’s rights? After all, isn’t the legal purchase of alcohol a voluntary market exchange and hasn’t Prohibition been settled by the 21st Amendment? And though Section 2 of the 21st Amendment does cede control to municipalities and States, those laws can now no longer infringe upon the rights of the individual. In short, what can of worms was really opened by today’s ruling?
It almost seems a bit retroactive to say that the 2nd Amendment is guaranteed to all individuals because of Section 1 of the 14th Amendment, but that precedent is now set. This ruling is a big brick wall. Say what you will about your position on gun ownership, but it is irrelevant in this discussion. What matters are the broad and expansive implications of this ruling. In some regards, this could be viewed as a huge Federal overreach of States’ rights and we’ll see if that debate materializes. What this means at its core is that American citizens, wherever home is in whatever State, has rights protected by the Constitution that supercede any legislation put forth by the States.
Now that individual rights are paramount to State laws, don’t be surprised to see this precedent reverberate in many different manifestations.