By Jeff Knox

Oral arguments in the Supreme Court case of McDonald v. Chicago were an interesting show on March 2. Most of the Justices made their positions on applying the Second Amendment to the states – and what mechanism to use to do it – fairly clear from the outset. Most observers agree that the Court will declare that states must recognize a fundamental right to keep and bear arms.

A secondary issue in this case is not just whether the Second Amendment should apply to the states, but also how it should get there. The 14th Amendment was written and ratified specifically for the purpose of, among other things, clarifying who is a citizen of the US and to make the rights of US citizenship applicable and enforceable in the states. That intent was thwarted however by a Supreme Court dominated by Justices with a strong state autonomy philosophy. In a ruling known as the Slaughter-House cases, the Court interpreted, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” to be limited in scope to only such rights or privileges as were bestowed by the Constitution, not those which pre-existed and were merely reiterated in that document.

In the 140 years since that egregious decision no Court has been willing to reverse their esteemed predecessors and open the Pandora’s Box of “unenumerated rights” mentioned in the Constitution. Instead they created a novel construct around another clause of the 14th which says, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” They have used this clause to somehow selectively “incorporate” virtually all of the Bill of Rights. Now they are poised to do the same with the Second Amendment.