The United States Supreme Court issued a landmark decision today regarding the Second Amendment to the federal constitution.

In a 5-4 decision in McDonald v. City of Chicago, the Supreme Court held, for the first time in its history, that the Second Amendment of the federal constitution applies to the States and local government through the post-Civil War era 14th Amendment. 

Just two years ago, in Heller v. D.C., the Supreme Court first definitively recognized that the Second Amendment conferred an individual right to possess firearms.  However, as D.C. ordinances are federal in nature, the Court left open the issue of whether the Second Amendment Heller decision applied to the States through the 14th Amendment.

Ironically, the underpinnings of the Court’s decision upsets the usually ideological take on the 14th Amendment.  A very conservative faction of constitutional scholarship has blasted the Court’s use of the 14th Amendment to upset the constitutional balance of powers such as the Court had done in Mapp v. Ohio or Miranda v. Arizona.

In fact, when a group of University of Cincinnati law students uncovered that Ohio was the only States that had never ratified the 14th Amendment, some conservatives actually voted against ratifying it on these grounds.

The question is: do conservatives now love the 14th Amendment?  Was that vote against the ratification of the 14th Amendment a few years ago, essentially against  gun rights in the States (although practically all States have their own constitutional right to bear arms, as Ohio does under Art. I, Sec. 1.04).

This case is also noteworthy as it establishes one of the final pieces of the Bill of Rights that the Court had not yet explicitly held were incorporated to apply to the States under the 14th Amendment.

The decision, accompanied by the concurring opinions and dissents, is over 200 pages long, so I have not yet had time to read the liberal wing of the Court’s dissents (accompanied by Justice Sotomayor) as to why they felt the Second Amendment was not intended to be incorporated against the States under the 14th Amendment.

The decision does not render any attempts by states and governments to regulate the ownership, sale, manufacture, use, or exchange of firesarms as unconstitutional, but it does strike a new balance in which many long-held regulations may undergo new and higher scrutiny.

This case comes out, coincidentally, on the first day of confirmation hearings for President Obama’s second Supreme Court nominee pick, U.S. Solicitor General Elena Kegan.

 

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