Our Supreme Court Hanging by a Vote

Yesterday the Supreme Court overturned the previous judgments in McDonald v City of Chicago, a case brought in opposition to Chicago's ban against citizens' possessing handguns. The ruling was cheered by Second Amendment rights advocates and a collective sigh of relief was exhaled by all those who cherish the Constitution and the Bill of Rights.

But there was bad news amidst the good. The ruling was 5-4.

According to the opinion published by the Court yesterday, Mr. McDonald, the petitioner argued that his "right to keep and bear arms is protected by the Privileges or Immunities Clause of the Fourteenth Amendment... and that the Fourteenth Amendment's Due Process Clause incorporates the Second Amendment right."

(The Fourteenth Amendment was ratified in 1868 after the Civil War. The Republicans in Congress submitted the amendment to the States in the aftermath of the war to grant citizenship to all those born or naturalized in the United States (former slaves) and to ensure they received the rights of a citizen. The Amendment declared no state shall "deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws.")

The City of Chicago argued that the Bill of Rights (which includes the Second Amendment) applies to the States, in effect, only under certain, limited circumstances. And their reading of the Fourteenth Amendment is equally as limited when it comes to the Privileges or Immunities Clause. They argue that both the Bill of Rights and the Fourteenth Amendment Privileges or Immunities Clause apply only to the Federal Government or those rights "which owe their existence to the Federal government," not the States.

But this argument is fundamentally flawed of our basic understanding of the Constitution and the Bill of Rights and the Founders intentions. Allow me to quote from Our Documents, 100 Milestone Documents from the National Archives, a book I purchased in the bookstore of the National Archives. Following is the intro to the Bill of Rights:

During the debates on the adoption of the Constitution, its opponents repeatedly charged that the document would open the way to tyranny by the central government. Richard Henry Lee, for one, despaired at the absence of protection of "those essential rights of mankind without which liberty cannot exist...They demanded a "bill of rights," that would specify the immunities of individual citizens (emphasis mine).

The real news here is that FOUR Supreme Court justices voted against McDonald.