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Sun, Aug. 25

Letter: States' Rights vs Bill of Rights -- A Conundrum of Disproportionate Means

Bill of Rights vs States' Rights

Bill of Rights vs States' Rights

What takes precedence? The right of the individual states to govern as they see fit or the Bill of Rights as mandated by the United States Constitution? At best this is a difficult question since both are guaranteed by the Constitution.

This is an issue where the Supreme Court of the United States has jurisdiction pursuant to Article III of the Constitution and rules supreme in the matter.

James Madison first wrote of this issue in Federalist Paper No. 45 stating that "the powers delegated by the proposed Constitution to the federal government, are few and defined. Those (powers) which are to remain in the State governments are numerous and indefinite." Of course the Federalist Papers are not the law of the land but merely state the intent of one of the framers during the drafting the Constitution.

The supremacy of the federal judiciary was first and foremost determined in the famous case of Marbury vs Madison (5 U.S. 137 [1803]) wherein the Supreme Court stated that any law repugnant to the Constitution is void, thus holding that the federal judiciary had the power to determine the constitutionality of any law enacted by the Congress of the United States. Note that the powers of the individual and several states were not mentioned therein.

The supremacy of the Constitution over the individual states was enumerated in following cases:

In 1819, the Supreme Court in McCulloch v. Maryland, 17 U.S. 316, stated "Let the end be legitimate ... and all means which are ... consistent with the letter and spirit of the Constitution, are Constitutional."

In Gibbons v. Ogden, 22 U.S. 1 [1824], the Supreme Court further held that "when a Federal and state law are in conflict, the Federal law is supreme."

Again declaring the supremacy of Federal law in a property matter, the Supreme Court in Charles River Bridge v. Warren Bridge, 36 U.S. 420 [1837], held that "The responsibility of government is to sacredly guard the rights of property for the prosperity of the community.

There have been numerous other cases following these principles that when a state law is in conflict with the Constitution, federal law reigns supreme.

The first specific holding of federal law over state sovereignty occurred in Schenck v. United States, 249 U.S. 47 [1919], when the Supreme Court held that restricting and prosecuting speech which presents a "clear and present danger" to the security of the United States is not in violation of the principle of free speech as protected by the First Amendment to the Constitution.

This principle was again held up by the Supreme Court in Near v. Minnesota, 283 U.S. 697 [1931] wherein they stated that "The liberty of the press ... is safeguarded from invasion by state action."

However, as asked above, what happens when two distinct rights clearly guaranteed by the Constitution are in conflict with each other?

The issue is particularly significant when it involves the Second Amendment, the right to bear arms. Most U.S. citizens consider the right to own and carry weapons to be foremost among their freedoms and iconic of our ideology and tradition.

However, the matter of what the Second Amendment actually means was never decided by the Supreme Court until the case of District of Columbia v. Heller, 128 S.Ct. 2783, [2008].

DC v. Heller is the landmark ruling in which the Supreme Court held for the first time that the Second Amendment protects an individual's right to possess a firearm for private use in addition to the collective right which applies to state-regulated militias.

However, the ruling only applied in federal enclaves such as the District of Columbia and the various territories and possessions of the United States. It did not address whether the ruling applied to individuals in the several states.

This remaining issue is about to be decided.

The matter of McDonald v. Chicago is being appealed to the Supreme Court from the U.S. Court of Appeals for the Seventh Circuit. The City of Chicago has enacted several laws which make it virtually impossible for an individual to own or possess a handgun.

At issue is the question of whether the Second Amendment's right to keep and bear arms is valid with regard to the individual states by virtue of the Fourteenth Amendment's Privileges, Immunities or Due Process Clauses.

The Fourteenth Amendment states in relevant part that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

In McDonald v. Chicago, the specific issue is whether a state or local government may ban the possession of handguns in light of the Second Amendment's right to keep and bear arms.

In the case, Petitioner McDonald argues that the right to keep and bear arms is a fundamental right that protects an individual's inherent right to self-defense, and as such, states should be prohibited from infringing this right.

The Petitioner McDonald's point of view is further supported by several Amicus (Friend of the Court) briefs by The Rutherford Institute, Texas and Thirty Four Other States, and Thirty Four California District Attorneys, generally arguing that handguns, in particular, are especially useful to average citizens in defending themselves or their property against criminals, making handgun possession an important component of the individual right of self-defense.

These briefs further argue that just as states do not have the authority to experiment with other fundamental rights, such as freedom of speech, states should not be allowed to experiment with the right to bear arms.

On the other side of the issue, Chicago argues that incorporating the Second Amendment against the states would disrupt the balance between state and federal power (i.e., the issue of states' rights).

This point of view is additionally supported by an Amicus brief filed by the United States Conference of Mayors, emphasizing the greater need for strict gun regulation in large urban areas with crime problems and cites the success of strict gun regulations in reducing crime in large cities such as New York. A long line of existing cases and opinons also support this argument.

The McDonals v. Chicago appeal was filed with the Supreme Court on June 2, 2009, and oral arguments are to be heard on March 10, 2010.

There is precedent on both sides of this issue and the argument as well as the opinion, whenever forthcoming from the Supreme Court will be followed with intense interest.

If the Court sides with Petitioner McDonald, it may reverse a long line of cases and incorporate the Second Amendment-and possibly the entire Bill of Rights-against the states.

On the other hand, if the Court sides with Respondent, City of Chicago, it will uphold these cases and restrict the scope of the Fourteenth Amendment. In any case, the issue and decision will very likely cause much argument and dissention among the citizens of the several states.

A more detailed analysis of both sides of this issue may be found at

Ed Tomchin

Golden Valley

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