New Gun Control Rulings and Constitutional Implications

“The great object is, that every man be armed… Every one who is able may have a gun.” –Patrick Henry

Whether you agree or not that Americans should have the right to bear arms, the founding fathers of the U.S. certainly thought so- the Second Amendment of the Constitution provides that the right to bear arms shall not be infringed upon.

Our modern Supreme Court seems to agree as well- recently the U.S. Supreme Court issued a ruling which extends the Constitutional right to bear arms to state and local gun control ordinances.

What this means is that states that historically have had stricter gun control laws will possibly have to slacken the scope of their gun laws in light of the expanded guarantee that private citizens can own guns.

For example, the city of Chicago is now wrestling with their gun control options.  Under the new ruling, the city’s current ban on handguns will likely be found unconstitutional since the right to bear arms now applies to state laws.  Citizens of Chicago, which currently has some of the strictest gun laws in the U.S., are outraged by the ruling, claiming that the ban on handguns has helped curbed violence in a major way.  The city’s mayor has already proposed new gun rules and registration procedures in anticipation that the current ban will be struck down.

Other states that will be affected by the new ruling are New York, California, and the District of Columbia, where guns are regulated quite heavily.

The case, McDonald v. City of Chicago (text of case here) is important not only for the arena of gun control laws, but also because of the way that the Supreme Court justices were generally able to extend federal constitutional rights to state governments.  If you recall, the Second Amendment, as part of the Bill of Rights, originally applies only to the federal and not state governments.  So how were the justices able to make the extension from federal to state?

Here the court had the option of choosing between two clauses that are found in the 14th Amendment of the Constitution.  First, they could allow states to “incorporate” the right to bear arms through the Due Process clause by proving that gun control laws restricted the due process rights of citizens.  Alternatively, under the Privileges and Immunities clause of the 14th amendment, the right to bear arms could be deemed one of the privileges that the states are prohibited from taking away.

Ultimately, the justices opted for the first choice and ruled that state restrictions on the right to bear arms may violate the Due Process clause.  This is important, as the due process clause largely deals with procedural issues.  It still remains to be decided whether the right to bear arms is a basic privilege that everyone is entitled to.  Only Justice Thomas in his highly praised concurrence made the argument that gun ownership is a basic privilege.

This is federalism (the division between federal and state governments) at its finest- the recent ruling questions the Supreme Court’s ability to apply general constitutional rights while at the same time addressing the specific needs of each state.  The McDonald case also leaves open the question of how each state is supposed to implement the new ruling.

The general gun control debate is one of the most explosive topics ever.  I particularly like the debate because aside from federalism concerns, it highlights what is known as political geography.  It is well-known that the left and right ends of the political spectrum tend to correspond respectively with urban and rural demographics.  Nowhere is this seen more clearly than with gun laws.

For example, gun violence in urban versus rural settings varies widely both in numbers and in their qualitative characteristics.  In rural areas, gun ownership is high but violence rates are lower.  Whereas in cities like Chicago, violence levels are high but gun ownership and registration is low (hence the Chicago handgun ban).  State gun laws tend to reflect these geographical differences.

As such, gun owners in a rural area would likely favor the Privileges and Immunities argument, as they tend to view long guns (rifles) as a necessary part of protecting their agricultural properties from intruders.  In contrast, urban areas are more associated with handguns as a means of protection from violent crime.  In that setting, a Due Process theory is more relevant, as cities such as Chicago attempt to institute procedures such as enforcing mandatory gun registration more strictly.

Thus the question of the rights to bear arms is not only about simply owning a gun, but rather for what purposes the gun will be used and whether or not it will be registered.

In my opinion one possible solution (or compromise maybe) is to allow citizens access to the many non-lethal weapons that are currently being developed by researchers (click here for a few high-caliber specimens).  Aside from propelling us into the science-fiction age, non-lethal weapons may be a viable option because they allow one to protect their property and safety interests while preserving the intruder’s life.

For the moment, several states’ lawmakers are scrambling to strike a balance between preventing gun violence and honoring peoples’ now expanded right to bear arms.  And one thing is a sure shot: more litigation is sure to follow the new gun control ruling.  Constitutional lawyers, armed with the new ruling, are already loading bullets into their chambers and aiming their legal weapons at states with questionable gun restriction laws.

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