Home -> Law Blog Directory -> Legal Commentary Blogs -> Althouse

Legal Commentary

: Althouse

Alito: Heller "points unmistakably" to the conclusion that the Second Amendment applies to state and local government through the 14th Amendment's Due Process Clause.

In this morning's opinion in McDonald v. City of Chicago, Justice Alito writes for a majority, explaining the doctrine of incorporation with useful clarity. The question to be answered is: "whether the right to keep and bear arms is fundamental to our scheme of ordered liberty... or as we have said in a related context, whether this right is 'deeply rooted in this Nation?s history and tradition" (page 19 of the opinion).

Applying that standard:

Our decision in Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is ?the central component? of the Second Amendment right.... (stating that the ?inherent right of self-defense has been central to the Second Amendment right?). Explaining that ?the need for defense of self, family, and property is most acute? in the home, we found that this right applies to handguns because they are ?the most preferred firearm in the nation to ?keep? and use for protection of one?s home and family?.... Thus, we concluded, citizens must be permitted ?to use [handguns] for the core lawful purpose of self-defense.?

Heller makes it clear that this right is ?deeply rooted in this Nation?s history and tradition.?

Justice Alito ? at page 42 ? rejects the 4 factors that Justice Breyer, in his dissenting opinion, argues should affect incorporation:

First, ?there is no popular consensus? that the right is fundamental; second, the right does not protect minorities or persons neglected by those holding political power; third, incorporation of the Second Amendment right would ?amount to a significant incursion on a traditional and important area of state concern, altering the constitutional relationship between the States and the Federal Government? and preventing local variations; and fourth, determining the scope of the Second Amendment right in cases involving state and local laws will force judges to answer difficult empirical questions regarding matters that are outside their area of expertise. Even if we believed that these factors were relevant to the incorporation inquiry, none of these factors undermines the case for incorporation of the right to keep and bear arms for self-defense.

Full post as published by Althouse on June 28, 2010 (boomark / email).