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When first ratified and added to the Constitution, the Bill of Rights applied only to the national level of government. The federal government would not be able to infringe on our fundamental rights as listed in the Bill of Rights. Fundamental rights go by many names including basic rights, human rights, inalienable rights, and natural rights. These are rights that we are born with; the government does not give us our fundamental rights – the government is there to protect these rights.
The 14th Amendment to the Constitution, one of the Civil War Amendments, was ratified in 1868 and changed the tone and future of the Bill of Rights. The 14th Amendment says very clearly: “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.” From this point forward the Bill of Rights would apply to the state governments as well as the federal government.
Over the next hundred or so years, the Supreme Court would use the 14th Amendment to force the states to comply with and protect the “fundamental” rights of the people contained in the Bill of Rights. One by one, case by case, the Supreme Court applied the 1st Amendment rights to the states, and then the rights of the accused found in the 4th through 8th Amendments.
One amendment had curiously escaped this treatment, the 2nd Amendment, until recently. In the DC v. Heller case in 2008 the Supreme Court ruled for the first time that the 2nd Amendment gives to the people the right to “keep and bear arms.” For some in this country that case was not enough to set the precedent and force the states’ compliance; the District of Columbia is not a state. And so we had the case of McDonald v. Chicago ruled on very recently by the Supreme Court. In this case the Court allowed that the right of self defense is a fundamental right deserving of protection from government, federal and state. The justices in the majority decided that the 2nd Amendment was applicable to the states through the 14th Amendment’s privileges and immunities clause and its due process clause. The decision was 5-4 with the four conservative justices voting in favor of a 2nd Amendment right to bear arms and the four liberal justices voting against it. The “swing” voter, Justice Anthony Kennedy, voted with the majority.
Our most recently Supreme Court Justice, Sonia Sotomayor, told the Senate Judiciary Committee during her confirmation hearing that she agreed with the Heller decision and believed that the 2nd Amendment did give the people the right to keep and bear arms. She added that the Heller case makes this idea of an individual’s right to bear arms “settled” law – meaning that it is the law of the land and requires no further review. In the recent McDonald case, on the same subject, she was on the side of denying the people this right. In fact, she claimed to see nothing that suggested the right of self defense to be a fundamental right and agreed with Justice Stephen Breyer’s dissenting opinion that DC v. Heller should be overturned.
Lately we have been watching the confirmation hearings of President Obama’s latest nominee for the high court, Elena Kagen. She has told the Judiciary Committee that she agrees with the McDonald decision and believes the right of self defense to be a fundamental right. This is very likely to be as untrue as the similar statement made by Justice Sotomayor during her confirmation hearing. This is the problem with Supreme Court nominees and their subsequent appointments. They can say anything while in front of the Senate Judiciary Committee for confirmation. If confirmed, and it is determined later that the nominee lied to the Senators, there is no repercussion; the Justice will sit on the Court for life.
By the time this goes to print Kagen will, in all likelihood, be confirmed and sitting on the Supreme Court. While the issue of self defense and the right to bear arms is important in and of itself, it should also serve as a warning to Senators that maybe the confirmation process should be taken a little more seriously – unless they don’t mind being lied to. Of course, the House of Representatives could always level an impeachment charge of perjury against Justice Sotomayor.
Maryann Zihala, J.D. is a political scientist and author of Rights, Liberties & the Rule of Law (2004) and Democracy: The Greatest Good for the Greatest Number (2003). Email:
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