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judiciary Second Amendment rights U.S. Constitution

Advance for Rights

Next to the Bill of Rights, the Fourteenth Amendment might well be the most momentous Amendment to the Constitution. Here’s the most interesting chunk of it:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Before this amendment, adopted after the Civil War (mainly to keep white southerners from tyrannizing ex-​slaves), the Bill of Rights had applied to individuals only against the federal government. After it, states were required to follow the Bill of Rights, too.

This week, in McDonald v. City of Chicago, five of nine members of the Supreme Court decided that the Second Amendment guarantees the right to own guns against prohibitive regulation by states. In Heller, two years ago, the Supreme Court had applied the Second Amendment to individuals only against federal government regulation.

McDonald is a major advance for gun ownership rights. But the most interesting thing about the case is Justice Clarence Thomas’s separate concurrence. Four of the Justices decided that the 14th Amendment’s “due process” clause applied. Thomas argued, instead, that it is the “privileges and immunities” clause that matters. 

Why care? Well, “privileges and immunities” is just a fancy way of saying “rights.”

That’s why we have courts. To protect our rights.

This is Common Sense. I’m Paul Jacob.

Categories
Second Amendment rights

Infringed Upon

Call me a literalist. If I see a sign saying “Keep Off the Grass,” I assume that instruction applies to you, and me, and everybody but the lawn’s gardener.

If my dog Bugsy is on leash, I’ll keep him off the lawn, too.

Same for the Bill of Rights. Even the notoriously controversial Second Amendment seems fairly clear: “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.”

What part of “shall not be infringed” is hard to understand? 

I just received a fascinating short article from the Cascade Policy Institute in Portland, Oregon, by Karla Kay Edwards. Ms. Edwards writes about current court cases regarding gun regulation. She explains that “in June 2008, the U.S. Supreme Court ruled that the Second Amendment applies directly to an individual’s right to bear arms. However, the decision did not clarify whether states and other government entities can limit those rights.”

She states it well. But, still, oddly. Don’t you find it a tad strange that rights listed in the Constitution as not to “be infringed” can, in the next breath, be spoken of as limitable?

Ms Edwards believes that such issues should be decided by the courts. I agree. But I’d prefer it if legislatures would simply not infringe on our rights in the first place.

This is Common Sense. I’m Paul Jacob.