Author: Daniel Himebaugh
McDonald v. Chicago could be one of the most important U.S. Supreme Court decisions this term because it will determine whether the Second Amendment applies to the states. Residents of Washington State, however, need not wait on the U.S. Supreme Court to make that determination. Last week, the Supreme Court of Washington ruled in State v. Sieyes that the individual right to bear arms guaranteed by the Second Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment. Of course, the Sieyes ruling is limited to Washington, but it could be a harbinger of the forthcoming decision in McDonald.
The Sieyes Court analyzed whether the right to bear arms applied to the states under the test established in Duncan v. Louisiana, 391 U.S. 145 (1968). The Duncan standard for applying individual provisions of the Bill of Rights to states turns on whether the right in question is "fundamental to the American scheme of justice." The court weighs four factors in answering this question: (1) the right's historical underpinning; (2) the states' initial regard for the right; (3) recent trends and popular views regarding the right; and (4) the purpose served by the right.
First, the Sieyes Court declared, without hesitating, that "[g]un ownership is an inexorable birthright of American tradition." The court traced the history of the right to bear arms through Blackstone, The Federalist, Reconstruction, up to the 2008 U.S. Supreme Court decision in District of Columbia v. Heller to conclude that the right to bear arms is deeply rooted.
Next, the court cited forty-four state constitutions in drawing the conclusion that the right to bear arms is protected, almost uniformly, in the states. While the history of the states is diverse, the court reported that "nearly all [states] secure (at least in part) an individual right to keep some kinds of guns for self-defense." Prong two: check.
The court then addressed the third prong of Duncan, which looks to contemporary views on the right in question. Relying mainly on Heller, the court echoed its finding under the first Duncan prong, reaffirming that recent federal case law stands for the proposition that the right to bear arms is an important individual right that continues to receive modern public support.
Finally, the Sieyes Court concluded that the overriding purpose of the Second Amendment is to promote "the security of a free State," which encompasses two concepts: (1) protection against governmental or military tyranny; and (2) self-protection. These purposes, said the court, make the right to bear arms fundamental, and thus support applying the Second Amendment to the states.
While McDonald is important for other reasons that Sieyes did not address, specifically on the issue of the Privileges or Immunities Clause, the Sieyes decision might be a foretaste of McDonald.