Using Guns to Protect Liberty

by Ilya Shapiro and Josh Blackman
This article appeared in the Washington Times on February 23, 2010.
Added to on February 24, 2010

In the landmark case District of Columbia v. Heller, the Supreme Court found that the Second Amendment protects an individual right to keep and bear arms. Because the District is a federal enclave, however, the court stopped short of deciding whether the Second Amendment applies to the states – and whether individuals can assert its protections against gun regulations in places like Chicago, New York and San Francisco.

In March, the Supreme Court will begin to answer this unresolved question – already answered affirmatively just last week by Washington state’s Supreme Court – when it hears arguments in McDonald v. Chicago, a challenge to Chicago’s handgun ban – in which the final briefs were filed earlier this month.

One of the things many people don’t realize is that the case is much more about the 14th Amendment than the second, because the original conception of the Bill of Rights – including the Second Amendment – only applied its protections to the federal government. It was not until the post-Civil War 14th Amendment that the Constitution protected individual rights against state tyranny, guaranteeing that no state could, for example, “deprive any person of life, liberty, or property without due process of law.”

Using this due-process clause, the Supreme Court has selectively applied almost all of the Bill of Rights against the states. Through this “incorporation,” as it is called, individuals gained the ability to challenge state violations of the freedom of speech, the right to be secure against unreasonable searches and a host of other rights. Based on such precedents, the Second Amendment could easily be incorporated against the states through the due process clause.

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