Tags: Constitutional Law, Incorporation
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The McDonald v. City of Chicago case established that the Second Amendment right to bear arms applies to states and struck down laws in Chicago and Oak Park that prohibited most private citizens from possessing handguns. The Court will continue to analyze rights under the Due Process Clause and will consider whether the Second Amendment right applies to the States under the Due Process Clause of the Fourteenth Amendment. The lower court should consider the petitioners' arguments and evidence when evaluating the constitutionality of the handgun ban. The Court used "selective incorporation" to fully incorporate specific rights in the first eight Amendments. The question at hand is whether the Second Amendment right to keep and bear arms is incorporated in the concept of due process, which requires determining if this right is fundamental to our scheme of ordered liberty or deeply rooted in our nation's history and tradition. The Due Process Clause protects fundamental rights not explicitly mentioned in the Constitution, but there is no clear principle to distinguish fundamental from nonfundamental rights. The author suggests restoring the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment, which applies to citizens to preserve their inalienable rights. The Privileges or Immunities Clause of the Constitution enforces fundamental rights, including the Second Amendment, against the States. However, the Supreme Court's decision in the Slaughter-House Cases limited the Clause's scope to protect only rights of federal citizenship and not state citizenship. The Court's "selective incorporation" doctrine is a subset of substantive due process, and the rights protected by the Fourteenth Amendment's Due Process Clause against state infringement do not have to be identical to those protected against federal infringement by the Bill of Rights.
The Second Amendment right to bear arms may apply to states through the Fourteenth Amendment, but states can regulate firearms as a property right. The Court should respect state and local legislatures' right to experiment in gun control policies, and determining the constitutionality of a state gun law requires complex empirical analysis that is better suited for legislatures than courts. Evidence shows the prevalence and impact of gun violence, including high rates of deaths and injuries caused by firearms, increased risk of homicide for women in abusive relationships with access to firearms, and high rates of firearm-related deaths for young individuals.
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