Erik Larson

Mar 3, 2010

Due Process in McDonald

Expectations are that the Supreme Court will find in favor of plaintiff in McDonald v. Chicago, which will effectively apply the Heller decision— that the individual has a right to bear arms in relation to the Federal government— to the states. In this case, the individual has this right in relation to his or her state. Proponents of gun rights rightly point out that this effectively makes gun bans unconstitutional (it does not prohibit, of course, reasonable restrictions on the sale and use of guns, including certain types of guns, like so-called “assault weapons”).

The Court will likely argue its case using the due process clause of the 14th Amendment, the clause responsible for transporting much of the Bill of Rights to the states (also, famously, the non-enumerated “right to privacy”, which played a pivotal rule in the landmark 1973 Roe v. Wade abortion ruling.)

Likely absent in the upcoming gun rights ruling will be any invocation of another 14th Amendment clause, prohibiting states from abridging any “priviledges or immunities” of US citizens, which was argued away from application to anything but protection of rights when citizens are “on the high seas” (no joke) by the 1873 Slaughter House rulings, widely thought to be flawed by liberal and conservative Constitutional scholars alike.

Anyway, it looks like Mr. McDonald will get his handgun for self-defense (he does live in the South Side of Chicago, after all). For those chagrined about the ruling, try to remember that the right to keep and bear arms is “right there in the text”, as Justice Scalia pointed out. For those worried that the Constitution has been getting trampled on in recent years, it would be a strange state of affairs if this didn’t provide some solace, however small.