Fanning the Flames: The Freedom Project Blog


Supreme Court Shooting Gallery

By Shawn Healy
"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."

The United States Supreme Court spent an hour and thirty-seven minutes yesterday considering the original meaning of these 27 words embedded in the Second Amendment (I previewed this case upon acceptance. To read my earlier post click here). Unlike much of the balance of the Bill of Rights, the Second Amendment has not been reviewed in its entirety by the high court since 1939, and has never deemed the right to keep and bear arms an individual one nor incorporated its collective interpretation to the states. The First Amendment, for instance, originally applicable to only national laws, was progressively applied to state and local laws and ordinances over the course of the 20th Century via the Due Process Clause of the 14th Amendment (for a more expansive layman's interpretation of the legal nuances of this case click here).

Moreover, the age-old interpretation of the Second Amendment as a collective right relates to its state militia component, meaning gun ownership and possession is tied to membership in today's equivalent of the national guard.

The plaintiff in this case, a District of Columbia resident who works as a security guard, is challenging a DC law that prohibits handgun ownership and possession (Chicago has a similar ordinance), alleging violation of his individual right to keep and bear arms. The defendant, the District, argues that the Second Amendment is not an individual right, but instead a collective one, thus permitting reasonable gun control measures to combat crime.

The interesting sidebar in this case is that it addresses an issue of federal consequence as the ordinance applies to the District of Columbia and not an individual state. The Court could reasonably recognize an individual right to keep and bear arms, but not incorporate the amendment and apply it to other states and localities. However, by recognizing an individual right, the justices are issuing an invitation for future cases where they could indeed incorporate the Second Amendment.

Chief Justice John Roberts is a stated proponent of minimalism, meaning the Court should decide a given case on the narrowest possible grounds. Based on statements made on the bench yesterday, the Court's conservative majority (Roberts, Scalia, Kennedy, Thomas and Alito) appear poised to recognize an individual right. Another split decision may also be in the works with the liberal wing (Stevens, Souter, Ginsberg and Breyer) standing in opposition. Whether the majority will go so far as to incorporate the amendment remains to be seen. While this would violate Roberts' minimalist objectives, it would arguably be in line with the other "fundamental" freedoms in the Bill of Rights already incorporated.

The Bush Administration, for that matter, through Solicitor General Paul Clement, advocated a middle ground approach. Acknowleding an individual right, Clement cautioned the Court that a sweeping ruling could undermine federal gun control legislation. I predict a ruling in line with this reasoning.

Like the First Amendment right to free speech (imminent danger test, time, place and manner restrictions, etc.), the Second Amendment right to keep and bear arms will likely come with limitations. The question is the extent to which individual gun control laws conflict with this individual right. Short of clearly defined rules embedded in the eventual opinion (expected in June), expect a slew of challenges flooding state and federal courts in the coming months and years. Through such sifting and winnowing, a tighter standard will likely emerge.


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Managing Director

McCormick Freedom Project

Shawn is responsible for overseeing and managing the operations associated with the McCormick Freedom Project. Additionally, he serves as the in house content expert and voice of museum through public speaking and original scholarship. Before joining the Freedom Project, he taught American Government, Economics, American History, and Chicago History at Community High School in West Chicago, IL and Sheboygan North High School in Wisconsin.

Shawn is a doctoral candidate within the Political Science Department at the University of Illinois at Chicago where he received his MA in Political Science. He is a 2001 James Madison Fellow from the State of Wisconsin and holds a bachelor's degree in Political Science, History, and Secondary Education from the University of Wisconsin at Madison.

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About Fanning the Flames and the McCormick Freedom Project

Fanning the Flames is a blog of the McCormick Freedom Project, which was started in 2006 by museum managing director Shawn Healy. The blog highlights the news of the day, in hopes of engaging readers in dialogue about freedom issues. Any views or opinions expressed on this blog represent those of the writers alone and do not represent an official opinion of the McCormick Freedom Project.

Founded in 2005, the McCormick Freedom Project is part of the McCormick Foundation. The Freedom Project’s mission is to enable informed and engaged participation in our democracy by demonstrating the relevance of the First Amendment and the role it plays in the ongoing struggle to define and defend freedom. The museum offers programs and resources for teachers, students, and the general public.

First Amendment journalism initiative

The Freedom Project recently launched a new reporting initiative with professional journalists Tim McNulty and Jamie Loo. The goal is to expand and promote the benefits of lifelong civic engagement among citizens of all ages, through original reporting, commentary and news aggregation on First Amendment and freedom issues. Please visit the McCormick Freedom Project's news Web site, The Post-Exchange at

Dave Anderson
Vice President of Civic Programs
McCormick Foundation

Tim McNulty
Senior Journalist
McCormick Freedom Project

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