Judicial restraint or judicial activism? It's how you look at it

By Peter C. Riley

In the 2008 U.S. Supreme Court decision in District of Columbia v. Heller, the court first recognized private citizens had rights to own firearms entitled to protection from federal law under the Second Amendment. Left open was the applicability of the Second Amendment to states and their political subdivisions.

On June 28, the U.S. Supreme Court decided McDonald v. Chicago (2010), and held the Fourteenth Amendment makes the Second Amendment protection of the right to keep and bear arms applicable to the states. The laws in Chicago and Oak Park, like the D.C. statute in Heller, effectively banned handgun possession in the home.

McDonald v. Chicago does not mean the states, and their subdivisions, have no power to regulate firearms. Heller made clear the Second Amendment right is not unlimited. In fact, Justice Alito's majority opinion in McDonald v. Chicago could be read as limiting the protection to self-defense. The extent to which state and local governments can regulate firearms, and whether other uses such as hunting will be protected, will be decided in subsequent cases.

To understand the Supreme Court's reasoning, it is necessary to understand the history of the Fourteenth Amendment and its effect on the first ten amendments, commonly referred to as the Bill of Rights. The Bill of Rights were adopted to provide assurance that fundamental rights would not be infringed on by the new federal government.

At the end of the Civil War, Congress proposed, and the states ratified, three amendments for the purpose of protecting the rights of the freed slaves and expanding federal power. The Thirteenth Amendment abolished slavery and the Fifteenth assured voting rights. The Fourteenth provided certain protections, including what are referred to as the privileges and immunities, due process and equal protection clauses: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens in the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Four years later, in what are called the Slaughter-House Cases, a conservative Supreme Court adopted a narrow interpretation of the privileges and immunities clause, which rendered the clause of limited effect against state action. The majority in McDonald v. Chicago acknowledged it is now well-recognized the decision in the Slaughter-House Cases was contrary to the clear Congressional intent that the privileges and immunities clause was intended to make the Bill of Rights applicable to the states.

Around the turn of the last century, the Supreme Court began considering application of Bill of Rights protections against the states based on the due process clause. Almost all of the Bill of Rights protections have been applied to the states.

While the majority opinion in McDonald v. Chicago acknowledged the Slaughter-House Cases were wrongly decided, it declined to base its decision on the privileges and immunity clause. Instead, the Court based its ruling on the due process clause. Gun ownership seems more a privilege or immunity than a matter of due process.

It is important to consider this history against the background of Elena Kagan's confirmation process. A conservative court in the post-Civil War era limited attempts by Congress to regulate the states. Later, what was considered a more liberal court applied most of the protections of the Bill of Rights to the states consistent with the intent of Congress in proposing the Fourteenth Amendment for ratification, but in a roundabout way under the due process clause.

Judicial restraint and judicial activism are often in the eyes of the beholder.

Peter C. Riley of Cedar Rapids is an attorney with the Tom Riley Law Firm, P.L.C. Comments:

peterr@trlf.com