Supreme Court Incorporates 2nd Amendment against the States

July 1, 2010


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The Supreme Court on Monday, June 29th 2010 in McDonald v. City of Chicago, Ill., — S.Ct. —-, 2010 WL 2555188 determined that the recently recognized 2nd Amendment individual right to own firearms would be incorporated against the states under the 14th Amendment.

This individual right to own firearms was very recently recognized by the Supreme Court in 2008 in District of Columbia v. Heller, 128 S.Ct. 2783.  Heller has been criticized in some circles for not laying out a test regarding this right, the Supreme Court did not indicate whether it was strict or intermediate scrutiny for example, and in McDonald the court refrained from deciding a test once again. 

McDonald is a quite straight forward decision, and the majority opinion at least is concerned almost exclusively with whether the 2nd Amendment is incorporated to the states under the 14th Amendment.  The Supreme Court held that it would be incorporated against the states, and reversed and remanded the Court of Appeals decision that Chicago and Oak Parks gun control ordinances were constitutional.

Given that the court declined once again to delineate a test, yet extended the newly recognized 2ndAmendment individual rights  to the states, now might be a good time to set up a Keycite Alert on Heller, 128 S.Ct. 2783. 

If you set up a Keycite Alert, you will get any new decision that cites to Heller emailed to you.  Since state laws and regulations are now subject to a 2nd Amendment challenge without any very meaningful guidance, there should be some interesting new arguments on the horizon challenging state firearms laws.

Additionally, West has a fantastic treatise on Westlaw dealing with all firearms issues, the Firearms Law Deskbook (FALDB), this is a peerless resource for practically any legal issue regarding a firearm.  Although it is not current enough of course to have this decision within it, it does have an extensive write-up on Heller to get you up to speed if this is a new area of interest, or if you just need a refresher.