Right to Bear Arms? Massachusetts Supreme Judicial Court & U.S. Supreme Court--Recent Activity
Days ago, the Massachusetts Supreme Judicial Court affirmed the Second Amendment to the United States Constitution imposes no limitations on the Massachusetts Legislature to regulate the possession of firearms. See Commonwealth v. Richard Runyan (slip opinion).
The Second Amendment reads,
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.
This case brings up the national debate on the right to bear arms and the Second Amendment. Is it a private individual’s right or, in the alternative, is it a State’s right--so the State may maintain a militia to defend itself? Grossly simplifying the theories, if it’s a State’s right, then the States can regulate it. If it’s an individual right, then that leads to a different analysis.
The SJC’s is an interesting decision in the wake of the U.S. Supreme Court’s 5-4 decision in Heller where the Supreme Court held the Second Amendment protects an individual’s right to possess a firearm in D.C. (D.C. is unique as it is a federal enclave and not a “free State.”)
The MA SJC reasoned the protection of the Second Amendment does not apply to the States as a matter of substantive due process under the Fourteenth Amendment to the United States Constitution. That is, the Second Amendment only prevents Congress, not the MA Legislature (until the Supreme Court says otherwise) from imposing limitations on the right to keep and bear arms.
We recognize that each of the cited cases limiting the application of the Second Amendment to the Federal government preceded the Supreme Court's selective incorporation of some provisions of the Bill of Rights under the due process clause of the Fourteenth Amendment, and that each was decided without reference to or consideration of the requirements of substantive due process. …
It's interesting to note that the much talked about case of McDonald vs. Chicago was also recently heard before the U.S. Supreme Court on March 2, 2010. Here the U.S. Supreme Court will likely decide the question of whether the Second Amendment becomes recognized as being incorporated into the the Fourteenth Amendment and therefore becomes applicable to the States.
Indications suggest the Court will recognize the right as being incorporated, but with questions arising as to what limitations might apply. If the Court does incorporate the Second Amendment and articulate rights held by individuals, then the SJC decision of earlier this week may ultimately provide short-lived precedent in Massachusetts. Perhaps the SJC sensed this, too, when it wrote:
Nonetheless, these cases are the law of the land until the Supreme Court decides otherwise, and we are therefore bound by them. …
Only time will tell, but the result will likely have far reaching implications. For in-depth coverage of McDonald vs. City of Chicago visit the SCOTUS Wiki for a wealth of information, resources, and always thoughtful analysis on Supreme Court cases.
