Wednesday, March 3, 2010

Does the Second Amendment Apply to the States?

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
- Second Amendment to the Constitution

Nor shall any State deprive any person of life, liberty, or property, without due process of law.”

- Fourteenth Amendment’s Due Process Clause

The debate about whether the 14th Amendment makes the first ten amendments to the Constitution applicable to the states, thus extending the protections of the Bill of Rights, has a long history that will gain another chapter when the Supreme Court hears the case of McDonald v. Chicago this week.

Citing the Due Process Clause of the 14th Amendment, the Supreme Court in a series of cases has held that most of the freedoms guaranteed by the Bill of Rights also apply to the states.
The 1st, 4th, three clauses of the 5th, the 6th, and a clause in the 8th Amendment have been incorporated.

Until now, however, the 2nd Amendment, along with the 3rd, a clause in the 5th and the 7th Amendment
have not been applied to, or incorporated against, the states. In D.C. v. Heller (2008) the Supreme Court held that the 2nd Amendment protects an individual’s right to possess firearms for self-defense within federal territories, like Washington, D.C.

McDonald v. Chicago will likely determine whether the limits placed on the federal government by the 2nd Amendment are applicable to state and local governments.

Ask your students which of the freedoms guaranteed in the Bill of Rights should be incorporated against the states, which should not be incorporated, and to defend their answers.

The Exchange, the National Constitution Center's program of national student deliberation, will grapple with the issue of gun control, when on May 20, The Exchange asks students: Can government prohibit citizens from owing handguns? Your students can join the conversation about important constitutional issues by visiting The Exchange's website.

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