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Fifth in a Series of Five
Read Fourth in the Series What the Court Said
In 1931, the Supreme Court concluded that the Fourteenth Amendment’s due process clause applied to the states the First Amendment’s ban on free press prohibitions, a stricture that had until then applied only to Congress. As time passed, the justices found that more and more of the Bill of Rights provisions originally applicable only Congress, applied to the states. This magical doctrine was named “incorporation,” and has come to embrace all rights deemed to be “fundamental.”
The Second Amendment has not been incorporated. But in District of Columbia v. Heller, the gun control case, the court recognized that it guaranteed a right that existed before the Constitution. So, the justices will, in the next Second Amendment case that comes before it, almost certainly classify that right as fundamental and eligible for incorporation.
That’s another way of saying that though the states had for 219 years exclusive control of all weapons not in interstate commerce—free to license or not license, to allow or to ban semi-automatics, to permit all caliber weapons or limit you to a .22—the federal government will henceforth have the last word on gun rights. The Second Amendment will for the first time apply not only to the District of Columbia but to the states, their constitutions, and laws from the statehouse to the village council.
Justice Stephen Breyer said, “The decision will encourage legal challenges to gun regulation throughout the nation.” Before most of us had a chance to digest Heller , the National Rifle Association announced that it would file a half dozen or so lawsuits across America contesting state and local gun laws for violating the fresh minted but pre-Constitution Second Amendment “individual right to possess and carry weapons in case of confrontation.”
In previous due process and equal protection cases, the court has developed tests—rational basis, strict scrutiny, etc.—to weigh competing claims of individual rights and legislative power. But in Heller , the Supreme Court made a point of saying it would set no standard at all. It will wait for the Second Amendment lawsuits to reach it, and proceed to determine the rationales for their decision case-by-case.
In other fundamental rights arenas—free speech in schools, for example, where the principle that decided the previous case is inoperative in the next, and the new one is ignored in the third—case-by-case has meant a court that makes up the law as it goes along. In case-by-case jurisprudence, no party to a lawsuit, especially a politicized lawsuit, may depend on precedent. To use a first-year law school cliché, the law of the nation then really is only what a majority of the court wants it to be.
Which is how the court decided Heller .
Read Standring's related blogs The Second Amendment Goes to Heller and A Well Regulated Militia: Did the Supreme Court Shoot Itself In the foot?
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