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DOCUMENTS


The Tentacle


March 9, 2010

To Arm or Disarmů

Farrell Keough

There is a new argument before the Supreme Court of the United States – McDonald v. City of Chicago. The arguments hinge on keeping the status quo versus integrating an “innovative” approach which could have far reaching effects on both state and national laws.

 

First, a bit of background. In 1833 the U. S. Supreme Court determined that the Bill of Rights do not apply to the states. Via the case of Barron v. Baltimore, a situation in which the alteration of a waterway affected a private individual’s ability to run his shipping business. In short, this was a case based on Amendment V of the Bill of Rights – “nor shall private property be taken for public use, without just compensation”

 

Consider that decision. States are sovereign entities and the Bill of Rights does not apply to states. In essence, states were free to determine their own laws and courses of actions. If you did not like the laws of a state, you were free to move.

 

At that point in our history, states had preeminence. There is good and bad to this – certain “individual” rights could be dispelled by localities. But, on the other hand, the autonomy of states was paramount. Many will argue that the Marbury v. Madison was the beginning of this process, but that is another discussion.

 

As time moved forward, a rather important skirmish occurred – the Civil War or War Between the States pushed the boundaries of state versus federal dominance with respect to the law. Following that war, the 14th Amendment was adopted by the states.

 

This amendment turned many legal decisions on their heads because of the inclusion of Due Process – in short, an individual must receive certain procedural actions by government before they are deprived of their life, liberty, or property.

 

This did not open the door to applying all amendments within the Constitution to the states. For instance, the 6th Amendment, which allows someone facing a criminal charge to choose a trial by jury, does not apply across the board in many states. Maryland, for instance, has bills in Annapolis which limits the ability for a jury trial dependent upon the severity of the charge and type of crime. Hence, not all of the Bill of Rights and amendments thereof apply to all states to this day. That is a very important concept and one we need to remember when considering this new case.

 

A number of other cases were noted in which constitutional authority superseded state laws, (Mapp v. Ohio for example that requires individuals are free from unreasonable search and seizures. But there is no need to go into each of these to grasp the importance of this case. What is important to understand is what is at issue – the Slaughter-House Cases of 1873.

 

This was a very curious situation – basically, the numerous slaughter houses in the City of Chicago were affecting the many other residents there. The city determined that under its authority via Health and Welfare, it needed to remedy this situation. It set up specific locations for slaughtering animals through a private corporation which was regulated by city officials with city employees – a franchise authority of sorts.

 

What made this important is that the Supreme Court determined that a United States citizen had two citizenships: one as a citizen of the U.S. and one as a citizen of the state in which they resided. In short, two sets of laws applied to citizens of the U.S.

 

Alright, we have some of the basics down. At one point in our history, the Supreme Court held that none of the Bill of Rights was applicable to the states. After the 14th Amendment, the Supreme Court held that “some” of the Bill of Rights applied to the states. Where that line existed was never firmly established.

 

This brings us to the Heller Case. Although the Supreme Court accepted this case to determine gun rights, it did have a fairly narrow focus. While the decision did protect an individual’s right to possess a firearm for private use, this only applied to the District of Columbia (a federal political district) and did not address whether the 2nd Amendment extends to states.

 

Tomorrow, we will discuss some of the arguments put forth in this case.

 

fkeough@hotmail.com



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