McDonald v. Chicago: 2nd Amendment Incorporated

wait a minute, doesn't that make it the 7th amendment

Is that what it means?

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"Incorporation" means the process by which the rights guaranteed under the Bill of Rights are applied to the states through the due process clause of the fourteenth amendment. Prior to the fourteenth amendment, the supreme court held that the Bill of Rights only restricted congress from passing laws that violated the rights guaranteed thereunder. The decision in McDonald means that the right to gun ownership guaranteed under the second amendment cannot be violated by the states.

so, people who advocate for states' rights would take this as a bad result?

I think there are a lot of states' rights advocates who are also gun nuts, so I wouldn't be so sure.

The irony is that "incorporation" was used by liberals to guarantee abortion rights. Conservatives have reluctantly used the same tactic to guarantee gun ownership rights.

With any luck sometime in the next seven years Obama will have a chance to replace one of the out-of-control right-wing-activist justices with someone sane, and we can get back to the task of recivilizing the country.

hard to shoot abortion doctors without gun rights


wait what

Thankfully people like me, who support abortion and gun rights, are completely consistent in this regard.

Just a few comments from a brief skimming of the opinions and some reviews:

I found it curious that Chief Justice Roberts chose Alito to pen the majority opinion in this case, given that Scalia authored the majority opinion in D.C. v. Heller, which struck down the handgun ban in the District of Columbia. Not sure what that signifies. Maybe Alito just didn't get any good opinions this term.

Justice Thomas split with his colleagues in the majority by advocating the "incorporation" of the second amendment through the fourteenth amendment's "privileges or immunities" clause, and thus reversing the decision in the Slaughterhouse Cases (1873). Thomas, once again, proves to be the justice most willing to overturn established precedent. Scalia, in his concurrence, had to apologize that, although he would really, really like to join Thomas in advocating the reversal of the Slaughterhouse Cases, it just wouldn't be practical.

The result of this case wasn't in much doubt after Heller. The debate, then, moves to what limits the states can place on the right to own guns. Alito reassured everyone that the decision in McDonald didn't mean that no regulation was permissible. As he stated: "We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons and the mentally ill,' 'laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.'... We repeat those assurances here." The McDonald decision didn't say what regulations are permissible, just that the Chicago regulations went too far.

The dissent didn't have much of a leg to stand on after Heller. Stevens and Breyer were pretty much left arguing that the second amendment wasn't so "fundamental to the scheme of ordered liberty" that it made incorporation through the due process clause necessary -- in the same way that, for instance, the grand jury requirement in the fifth amendment is also not applied to the states. But Heller showed that there were five votes for just that view, so there was no chance for the minority position to have prevailed on that argument.

Hawaii's assault weapons ban should be next -- and when it falls we'll have a nationwide right to have assault weapons.

I can almost taste the freedom. It's almost here.

Almost nationwide. Still not legal in C(r)ook county (where Chicago is). My AR15 is in storage 25min from my home, where I can do no damage with it. I hope Chicago feels safe that all assault weapons are at least 25min outside the city.

That will change after the next lawsuit.

Step one: Sue D.C. to establish that the Second Amendment is an individual right.

Step two: Sue Chicago to establish that the Second Amendment applies to all levels of government.

Step three: Sue Hawaii to establish that the Second Amendment protects our right to have assault weapons.

Step four: Sue ???? to establish that the Second Amendment protects our right to carry handguns in public.


We've just completed step two. When we complete step three you'll be able to bring your assault rifle home.


(I presume the next target is still Hawaii. Last time I heard a discussion of strategy, it was regarded as the place with the most draconian version of an assault weapons ban.)

Do I, as a landowner, have the right to prohibit gun-toting people from my property? My house or my shopping center, for example.

Any property you own, yes.

Except for the ones in the hands of criminals.

Your house, yes. (At least in the context you intended the question.)

Your shopping center, more complicated.

The Second Amendment would not prevent you from barring guns from your shopping center.

However, a state or local statute might compel you to allow them.

If you are curious about my qualifier about context, I was thinking that if the police show up at your door with a search warrant, you are probably not going to be able to prevent people with guns from traipsing around your property.

But as far as just preventing the ordinary public from entering your home with a gun, you would be able to do that.

The Chicago City Council, by a vote of 45-0, passed an ordinance that is restricting gun possession after the Supreme Court struck down the prohibition of guns in the city.
Yes, you can now have a gun in your house but you can not carry it outside.
I am sure Joefromchicago can elaborate. There are going to be some folks that are going to argue this vote makes a mockery of what the Supreme Court ruling said.