Ripped From the Headlines--Incorporation and the 2nd Amendment

The Court, Incorporation, and the 2nd Amendment

Reference CNN Page: http://www.cnn.com/2009/CRIME/09/30/scotus.state.guns/index.html?iref=allsearch

Reference Chicago Tribune: http://www.chicagotribune.com/news/local/chicago/ct-news-chicago-gun-ban-20100129,0,3152673.story

Hippocampus: Lesson 6, Lesson 28, Lesson 30, Lesson 32

Sometimes news stories can really pull together many of the concepts we try to teach. This Tuesday the Supreme Court will be hearing the case of McDonald v. the City of Chicago, a 2nd Amendment issue. McDonald is asking the Court to strike down a city gun ban that would have far reaching effects on municipalities and states. In effect, the Court has been asked to incorporate the 2nd Amendment. No fewer than 49 amicus curiae have been filed in this case. The Supreme Court last year decided on a Washington, D.C. gun ordinance. Now many are wondering if the Court will reverse 140 years of precedent and open the door to new rights in gun ownership.

For teachers of APGOPO, this case offers a unique look at not only the Court, but also the concept of incorporation. There are several things one could do with this case. In my class, I will have the students do a short Internet research on the history of gun cases in the Supreme Court starting with the Presser case and ending with the Heller case. I will then have them present the findings of the Court in class in each of the cases that they find. We will then follow this case's oral arguments and see what basis the Court will use to determine if the 2nd Amendment is to be incorporated.

Historically, the 14th Amendment has been the justification for incorporation. Will that hold true in this case? When the Court releases its findings and the opinions are brought down, we will ultimately read the opinions and glean the Constitutional issues the Court used in its decisions. This is case will most likely produce not only a majority opinion, but also concurring and minority opinions. It should be a textbook in Constitutional reasoning and justification.

We seldom have an opportunity to watch the incorporation of a right. Since the Warren Court in the 1950s and 1960s, those few provisions of the original Bill of Rights not incorporated have been off limits to the Court. McDonald v. City of Chicago offers us a rare glimpse of incorporation of a right in the making. Some have even suggested that the Court could overturn the Slaughterhouse Case (Hippocampus Lesson 32), rendering the concept of selective incorporation obsolete and radically changing American jurisprudence.

This case can be used in several places within the Hippocampus curriculum. Early on in the year it can be used with Underpinnings Unit in Lesson 6. In Lesson 28 on the Court you could use this case to demonstrate how the Court finds and accepts cases as well as looking at the process of making decisions and rendering the opinions. Lesson 30 concerning judicial review could also benefit from using this case. In addition (and possibly most importantly), it can be used along with Lesson 32 on the concept of selective incorporation.

Depending on how the Court finds following the March 2nd oral arguments, McDonald v City of Chicago might become as important of a case as Mapp v. Ohio, Gideon v. Wainwright, or Miranda v. Arizona to those of us teaching APGOPO. Its probably a good time now to add it to your curriculum.