On Handguns and the Constitution

by Ronald Rychlak - July 21, 2010

Reprinted with permission.

On June 28, in the case McDonald v. Chicago, the United States Supreme Court held that cities and states cannot interfere with the right of individuals to keep and bear arms. The city of Chicago had tried to ban handguns, but Chicago resident Otis McDonald challenged the law, arguing that it made him less safe. By a five to four vote, the Supreme Court held in his favor, ruling that the Second Amendment protected his right to possess a handgun in his home.

The Constitutional argument existed because of the unusual wording of the Second Amendment. It says: "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." In the past, gun-control advocates argued that the provision relating to a "well regulated Militia" modified the right to gun ownership, and the Second Amendment therefore only conferred a right on the states to have militias. Two years ago, the Supreme Court rejected that argument and affirmed that the federal government could not interfere with an individual's right to keep and bear arms.

The case from two years ago, however, left open the question of whether the Second Amendment limited cities and state governments in the same way that it limited the federal government. That was an issue because of how the Bill of Rights (the first ten amendments to the Constitution) came into being. It was a direct response by early Americans to the abuses perpetrated against them by the British during colonial times.

Prior to the Revolutionary War, the British suppressed speech, had a state-sponsored church, housed soldiers in private homes, broke in and searched homes without individualized warrants, sent people across the ocean to stand trial, forced defendants to testify (even if that meant incriminating themselves), and imposed cruel and unusual punishments. They also took away the colonists' guns.

Once freedom from the British had been won, the colonists wanted to be sure that the new federal government that they were establishing would not be like the old one they had just thrown off. Thus, before agreeing to a Constitution, they demanded a Bill of Rights that would limit the new central government. They wanted their guns protected not just for hunting or even for self-defense against crime: They wanted to keep their guns to make certain that this new central government did not become oppressive.

The Supreme Court recognized this concern in the McDonald case. It referenced the "palladium of liberty" idea, which holds that "the right of the citizens to keep and bear arms… offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally… enable the people to resist and triumph over them." In other words, the Second Amendment is not just about protecting hunters or even the right to self-defense. One of the most important reasons for assuring people the right to keep and bear arms is to give them the ability to resist a dictatorial government.

Of course, the Bill of Rights (including the Second Amendment) only directly applies to the federal government, not states or cities like Chicago. The 14th amendment to the Constitution does, however, apply to state and local governments. Adopted after the Civil War, that amendment prohibits states and municipalities from denying anyone due process or equal protection under the law. In the McDonald case, the Court held that the right to keep and bear arms (or – more precisely – the prohibition of government interference with keeping and bearing guns) applies against state and municipal governments through the 14th Amendment. The Chicago ban on handguns, therefore, was unconstitutional.

Since 1975, The United States Conference of Catholic Bishops (USCCB) has favored handgun control. In fact, the 1975 USCCB statement called for "truly comprehensive control," and it endorsed several interim steps to regulate the use and sale of handguns, including: a cooling off period before a sale; a ban on "Saturday Night Specials"; registration of guns; licensing of owners; and better enforcement of laws relating to manufacture, importation, and sale of handguns. In 1995, the USCCB wrote of intensifying "our advocacy for national policies that address violence, including… the availability of drugs and dangerous weapons."

Despite the stand of the bishops, all five of the votes in the McDonald majority came from Catholic justices: Roberts, Scalia, Kennedy, Thomas, and Alito. The sixth Catholic justice, Sotomayor, voted with the dissent.

In light of the teaching by the bishops, one has to wonder about the impact of the McDonald decision. In pondering that matter, the opinion of the plaintiff McDonald is worthy of consideration. This 76-year-old African-American son of Louisiana sharecroppers explained why he was happy with the decision: "I was feeling the poor blacks who years ago had their guns taken away from them and were killed as someone wished. That was a long time ago, but I feel their spirit. That's what I was feeling in the courtroom." He said the Supreme Court ruling will make his gang-ridden neighborhood a safer place to live.

I have a hard time doubting him.

Ronald J. Rychlak is the associate dean and MDLA Professor of Law at the University of Mississippi School of Law. He is the author of Hitler, the War, and the Pope (2000) and Righteous Gentiles (2005).