United Liberty

George Will explains the importance of incorporating the Second Amendment in the McDonald v. Chicago case through the Privileges or Immunities Clause of the Fourteenth Amendment:

To the drafters of the 14th Amendment, the phrase “privileges or immunities” was synonymous with “basic civil rights.” But in 1873, the court held that only some of the rights enumerated in the Bill of Rights restrict states by being “incorporated” into the 14th Amendment’s “due process” clause.

Since 1897, the court has held, with no discernible principle, that some rights enumerated in the Bill of Rights are sufficiently fundamental to be “incorporated” but others are not. This doctrine bears the oxymoronic name “substantive due process.” Substance is what process questions are not about.

If the court now “incorporates” the Second Amendment right via the “due process” guarantee, that will be progress because it will enlarge the sphere of protected liberty. And even Justice Antonin Scalia, who recognizes that “substantive due process” is intellectual applesauce, thinks it is too late to repudiate 137 years of the stuff. Still, three points argue for using the “privileges or immunities” scythe against the two gun ordinances.

First, protecting the individual’s right to keep and bear arms for self-defense was frequently mentioned by those who drafted and ratified the 14th Amendment, the purpose of which was to protect former slaves and their advocates from being disarmed by state and local governments determined to assault their security and limit their autonomy.

Reason TV recently talked to Eugene Volokh, a law professor at UCLA and blogger at the Volokh Conspiracy, about free speech, the Second Amendment and nanny-statism.

Don’t forget, the Supreme Court will hear arguments in McDonald v. Chicago this morning at 10am. Unfortunately, we won’t be able to hear what was said until a transcript is available later in the day as the Court has refused to release audio of the arguments.You may remember that the Court released audio of the Heller case the day of the argument.

As mentioned yesterday, the Court will determine whether the Second Amendment should be incorporated to the states through the Privileges or Immunities or Due Process Clauses of the Fourteenth Amendment.

It’s possible we’ll have an idea of how the court will rule in the case shortly after, though a decision won’t be released until summer. Some legal scholars, such as Ilya Shapiro, seem confident that the Second Amendment will be fully restored to the original intent of the Founding Fathers:

The Court is quite likely to extend the right to keep and bear arms to the states and thereby invalidate the Chicago handgun ban at issue, but the way in which it does so could revolutionize constitutional law.

If you’re up for listening to a discussion on states and the right to bear arms, which is the question before the Court, check out this discussion that took place at the Cato Institute yesterday.

The Supreme Court will hear arguments in McDonald v. Chicago on Tuesday, a case that deals with the City of Chicago’s restrictive gun laws:

On one side are the law-abiding city dwellers who say they need guns to protect themselves from armed thugs. Among them is Otis McDonald, who says he is worried about the armed drug dealers on the streets in his Morgan Park neighborhood.

“I only want a handgun in my home for my protection,” said McDonald, 76.

On the other side are prosecutors and police who say the city’s ban on handguns gives them a legal basis for confronting gang members and drug dealers.

“If an officer sees a bulge in a pocket, he can stop and frisk that person,” said Cook County State’s Attorney Anita Alvarez.
[…]
Regardless of who prevails, the case of McDonald vs. Chicago figures to be a landmark in the history of the 2nd Amendment and its “right to keep and bear arms.” It will decide whether the 2nd Amendment applies only to federal gun laws or if it can be used across the nation to strike down state and local gun restrictions.

What the plantiffs hope to do, in addition to bringing more reasonable gun laws to Chicago, is incorporate the Second Amendment to the states through the Due Process Clause of Fourteenth Amendment.

Going back to the Heller case, it was fairly obvious how the court was going to rule during the oral arguments. Justice Anthony Kennedy was the swing vote and he made his views on the Second Amendment fairly clear.

Over at Real Clear Politics (a daily read for me), Jeremy Lott notes some of the victories libertarians have achieved over the last couple years:

The last several years have not been easy for libertarians to stomach. The U.S. government, which had bloated under President George W. Bush and a Republican Congress - the annual budget had climbed from $2 to $3 trillion under Bush and that didn’t count much off-budget military spending - has grown even more under President Barack Obama and his Democrats.

David Kopel sums up the results:

NY-23: Winning Democrat Bill Owens was A-rated by NRA (as was Hoffman).

Virginia: Either Deeds (B rating) or McDonnell (A) were sure to be a big improvement over outgoing Governor Kaine. Deeds lost the NRA endorsement by supporting closing of the (non-existent) “gun show loophole.” In the Attorney General race, Republican Ken Cuccinelli (A+) handily defeated a D-rated Democrat who advertised very aggressively on the gun show issue. Incumbent Lt. Gov. Bill Bolling (A+) trounced an F-rated challenger.

In the Virginia House of Delegates, five Republican challengers with A ratings ousted Democratic incumbents rated F,F,B,B,B. A C-rated Republican also unseated an F Democrat incumbent.

(…)

By far the most prominent gun control advocate on the ballot this year was Jon Corzine (F). This summer, Corzine twisted lots of legislative arms to win enactment of gun rationing (“one-handgun-a-month”), a silly law that is even sillier in New Jersey, where every handgun purchase requires advance permission from the local police chief. With Christie replacing Corzine, New Jersey gun owners can hope for benign neglect rather than active hostility. The  New Jersey Assembly appears to be unchanged.

Remember when it seemed like the gun grabbers were on the rise?