Legally Speaking: Guns out of heller

In the past two weeks, I have explained how the Supreme Court arrived at the decision that we have a right to have handguns in our homes. They focused on self-defense as the core principle behind Second Amendment as shown in District of Columbia v. Heller and McDonald v. Chicago. The Court used “substantive due process” to find that a right to self-defense exists and that banning the possession of a handgun in the home is too restrictive. Substantive due process centers on the Fourteenth Amendment’s “due process” clause that reads “No State shall make or enforce any law...that deprive[s] any person life, liberty, or property, without due process of law…” The “liberty” portion of that clause has been invoked in the past to find a legal foundation for privacy [Griswold v. Connecticut], abortion [Roe v. Wade] and homosexual sodomy [Lawrence v. Texas]. However, the Court had another legal avenue available and possibly more readily logical, but had the Court utilized this argument 137 years of Supreme Court precedent would have been overturned. The Court could have dusted off the Privileges or Immunities Clause.

After the Civil War, the U.S. passed the Fourteenth Amendment to the Constitution that contains the clause “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…,” known as the “Privileges or Immunities Clause. In 1873, the Supreme Court, by a 5-4 majority, decided the Slaughterhouse cases, leading to the narrow interpretation of the Privileges or Immunities Clause, basically allowed a citizen the right to move from state to state. Most legal scholars now believe that the Slaughterhouse cases were wrongly decided. Yet, they also conclude that reversing them now would cause too much turmoil in our legal system.

However, Justice Clarence Thomas in McDonald v. Chicago, directly challenged the Slaughterhouse precedents and sought to broaden the scope of the Privileges and Immunities Clause beyond allowing citizens to move from one state to another. His concurrence (a “concurrence” is defined as an opinion that approves of the outcome of the case, but for different reasons) was not joined by any other justice, but it was not directly challenged either and even implicitly approved.

Justice Thomas argued that the passage of the Fourteenth Amendment, which included the Privileges or Immunities Clause, incorporated the Bill of Rights to the States, meaning that the States were required to follow the minimum guarantees of the Federal Constitution. This was a far greater protection of citizens’ rights than mere travel or relocation within the United States. Reading the clause once again, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…,” one can reasonably see how it was mean to mean more than the current narrow Supreme Court interpretation allows for.

In addition to his arguments made for an expansion of the Privileges or Immunities Clause, Justice Thomas argued that the right to free speech and the right against unreasonable searches and seizures (First and Fourth Amendments) pre-existed the Constitution and were not “new” rights, but fundamental rights simply codified in the Bill of Rights, and so too, was the Second Amendment. In other words, the right to keep and bear arms was a privilege of U.S. citizenship that stretched back further than the founding of the country. Therefore, as Justice Thomas argued the 2nd Amendment wasn’t even needed to prevent the government from banning a class of weapons, i.e. handguns.

Personally, I believe that Justice Thomas’s reasoning is the most sound and most understandable to the public, and I partially disagree with Court majority’s reasoning that the “core” of the Second Amendment is only self-defense. Rather, it is what it reads, “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.” Thus, the Second Amendment recognizes militias, which would have been raised on the state level from the local population. All citizens had the right to keep and bear arms for the purpose of militia duty and self-defense. Just like citizens used to have to care for roads and basic infrastructure, they also had a duty to fight in a militia if called upon. Simply because we have a national, standing, and voluntary military does not obviate the need for the Second Amendment. The dual need still exists not only for personal self-defense, but also to protect us from our own government from becoming tyrannical or to protect our national interest if we were invaded by a foreign country. Just like the Eighteenth Amendment ratifying prohibition was repealed by the Twenty-First Amendment, the citizenry possesses the Constitutional power to narrow or repeal the Second Amendment, but until then, the Supreme Court has interpreted the Constitution to guarantee that right to everyone.

Erik J. Honkanen, Law Office of Erik J. Honkanen, S.C., U.S. Bank Plaza, 230 1st St. South, STE 101, Virginia, MN 55792, 218- 749-3047, erik@honkanenlaw.com.