Neily discusses the right to bear arms

Published: April 5th, 2010

Category: Events, News

The recent Supreme Court case D.C. v. Heller, in which the court held that the right to bear arms contained in the Second Amendment is an individual right, is still a hotly debated subject, but another important gun case is coming right on its heels. Clark Neily, a senior attorney at the Institute for Justice and one of the architects of the Heller case, spoke to students about both cases on Wednesday at an event hosted by the Federalist Society.

Neily said that while Heller answered some important questions, it raised further questions. Not only did the Heller opinion not specify a standard of review, but it left open the question of whether the right to bear arms had been incorporated. The case of McDonald v. Chicago seeks to enter that question. For those not familiar with the incorporation doctrine, Neily summarized the questions as “whether the right to use and bear arms applies against the state and local governments.”

The question is of high importance for a reason that Neily pointed out, saying, “most of the gun laws are on the state level.” Such is the case in McDonald, where the city of Chicago has issued a handgun ban, and has also restricted use of other firearms to a degree that the plaintiffs think is unconstitutional. If the Second Amendment has not been incorporated, state and local governments are under no obligation to abide by it, as the Bill of Rights originally applied to only the federal government.

While Neily, who was co-counsel in Heller, did not serve as counsel to the plaintiffs in McDonald, the Institute for Justice did file an amicus brief, and Neily has some strong views on the subject. Neily also noted that his interest in these cases was not borne from beliefs about gun rights in particular, saying “originally, Heller wasn’t supposed to be about guns, it was supposed to be about liberty.”

Neily said that he has encountered very little disagreement with the idea that the Second Amendment is incorporated against the states, but added that that is only a portion of the McDonald case. For the rest of it, Neily had to give a bit of a history lesson, starting in mid-19th century New Orleans. This was the birthplace of what we now know as the Slaughter-House Cases. In what Neily described as a “rampantly dishonest opinion” the court interpreted the 14th Amendment as having very little impact, and more or less completely writing out the Privileges and Immunities Clause. The effect of this has been that the Supreme Court must now use the substantive due process framework to analyze the protection of individual rights. Neily argued that these analyses were meant to be done through the Privileges and Immunities Clause, saying that, at the time, “‘privileges and immunities’ was pretty well synonymous with ‘rights.’”

The oral arguments for McDonald were heard in early March, and while Neily seemed optimistic that the court would hold that the Second Amendment has been incorporated, Neily said he could not be as optimistic that the court would overturn the Slaughter-House Cases. The court’s questioning on the subject had been quite harsh, including what Neily described as “snide and snarky” comments from Justice Antonin Scalia about why long-decided law should be changed.

After Neily finished his presentation, UF Law professor Joseph Little raised issue of the 14th Amendment, pointing out that his interest in it was not nearly that of Neily, but did commend him for helping to enforce individual rights, something that Little said is not done nearly enough.