The State of the State's Ability to Take Your Guns

Still clinging to guns and religion? Still think that the Federal government is the one to fear about prying that firearm from your warm, live hands? Think again, because the real threat to your Second Amendment "rights" exists at a lower tier of government hierarchy.

Can your State take your firearms? Well, yes, depending on the State. Some states have included rights to ownership in their respective constitutions, but the fact of the matter is your right to posses or use firearms is merely a privilege at the state government level. This is a little understood fact about the status of gun regulation in this country.

While most people with an interest in the gun debate spend their time hollering about the meaning of the Second Amendment and the intent of the founding fathers, I believe the operative question moving forward is what regulatory power do the states have? As of now, that answer is whatever they want, but with the US Supreme Court recently agreeing to hear a challenge to Chicago gun laws that answer could change.

For the first time since 1939 the US Supreme Court addressed the meaning of the Second Amendment in the landmark case of District of Columbia v. Heller (Heller). The court ruled that an individual has the right to keep and use firearms, though, like most constitutional rights, it’s not absolute and is subject to reasonable regulation. This ruling overturned the previous holding established by US v. Miller, which considered the right granted under the Second Amendment to extend only to members of well regulated militia. A plain reading of the Second Amendment is helpful to illustrate how the court came to that conclusion: "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."

From Miller to Heller gun advocates vehemently argued that the Miller opinion was limited to the type of weapons subject to regulation and the opinion did not represent a thorough examination of the rights conferred by the Second Amendment. The Heller court agreed, stating that the Second Amendment doesn’t protect weapons normally not carried by law abiding citizens, such as sawed-off shotguns. The court dismissed the previously held notion that militia membership is a prerequisite to protection under the Second Amendment.

Though these cases represent differing interpretations of the Second Amendment there is a commonality between them. Both failed to address the string of 19th century cases stating that the protections of the Second Amendment only applied to the Federal government. See, the Heller court was faced with a challenge to a District of Columbia gun law. D.C. is technically a federal enclave so the D.C. gun law was a federal regulation in the eyes of the court. Miller also dealt with a challenge to a Federal as opposed to State firearm regulation.

So the current status of gun regulation in this country is that the Second Amendment does not apply to State regulation. But that could change after the court rules in the case of McDonald v. City of Chicago later this year. The case involves a challenge to a Chicago hand gun ban similar to the one struck down in Heller, the main difference being that it involves a second amendment challenge to a state regulation.

I think a quick summary of incorporation is in order here to understand why the second amendment and certain others don’t apply to the states. It was originally thought that the Federal Constitution only applied to the Federal government. Then in 1868 the Fourteenth Amendment to the Constitution was adopted. Beginning in the 1890's a series of Supreme Court Cases began interpreting the Due Process Clause of the Fourteenth Amendment to "incorporate" portions of the Bill of Rights against the States. Meaning that State laws are subject to constitutional challenges based on that provision. Incorporation of rights against the states has been done on a case by case basis. This is known as selective incorporation. Currently, the Second Amendment, portions of the Fifth Amendment, the Seventh Amendment and a provision of the Eighth Amendment have not been incorporated against the States.

So now, with the US Supreme Court agreeing to hear a challenge of the Chicago gun ban, the stage is set for the court to rule whether or not the Second Amendment is incorporated against the states. To demonstrate that an amendment should be incorporated against the States the petitioners must show the rights at issue are "implicit in the concept of ordered liberty" or "deeply rooted in our nation’s history and traditions" as defined most recently in the 1968 Supreme Court case Duncan v. Louisiana.

Considering the ruling in Heller and the hard core conservative makeup of the Supreme Court, incorporation is likely. Ironically, gun enthusiasts are hoping for the same kind of judicial activism to incorporate the Second Amendment that they have railed against when the Supreme Court has extended constitutional protections to rights not consistent with their beliefs. If Scalia's track record is anything to go on, gun advocates have nothing to fear, he will gladly sacrifice his judicial philosophy for his conservative principles.