Blog: Court may arm itself with 1st Amendment as it tackles 2nd

Thursday, March 4, 2010

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A recent Second Amendment case may give the U.S. Supreme Court another opportunity to call upon its arsenal of First Amendment jurisprudence. This week the high court heard oral arguments in McDonald v. City of Chicago, a case that could determine whether the constitutional right to “keep and bear arms” limits state and local governments’ ability to restrict gun ownership.

A major issue in constitutional law is determining what freedoms in the Bill of Rights — which protects individuals from infringements by the federal government — are extended to the states via a process known as selective incorporation. During the 20th century, many constitutional freedoms — including all five freedoms in the First Amendment (religion, speech, press, assembly and petition) — were incorporated into the due-process clause of the 14th Amendment, which provides that no state shall “deprive any person of life, liberty or property without due process of law.” The process of incorporation means that, for purposes of constitutional law, the term “liberty” in the due-process clause encompasses First Amendment and other select freedoms included in the Bill of Rights.

In McDonald, the Court has to determine whether, like the five freedoms of the First Amendment, the Second Amendment right to “keep and bear arms” extends beyond the federal level, thus barring infringements by state and local government officials.

During oral arguments, the attorneys and justices mentioned the First Amendment on at least six occasions. This frequency is not surprising, as the Supreme Court cited the First Amendment repeatedly in its 2008 decision in Heller v. District of Columbia, when the Court ruled that the Second Amendment protected an individual right to keep and bear arms, rather than just a collective right for a militia to bear arms.

In his majority opinion in Heller, Justice Antonin Scalia explained that both the First and Second Amendments include the phrase “right of the people.” He also emphasized that just as the First Amendment does not prohibit all regulations of speech, the Second Amendment need not prohibit all regulations of gun ownership. Scalia also noted that it took more than 130 years for the Supreme Court to develop an extensive First Amendment jurisprudence, explaining that it was not unusual for the Court to take a long time to examine and clarify the contours of a constitutional amendment. Dissenting justices in the Heller case also cited the First Amendment on multiple occasions.

Given the many references to the First Amendment in oral argument, don’t be surprised if the Court frequently cites the First Amendment in its decision in McDonald. If recent history repeats itself, the justices will find the First Amendment and its vast jurisprudence a welcome help in interpreting the Second Amendment.

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