[Congressional Record (Bound Edition), Volume 156 (2010), Part 3]
[Senate]
[Page 3222]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           RIGHT TO BEAR ARMS

  Mr. UDALL of New Mexico. Mr. President, last week, the Supreme Court 
heard oral arguments in the McDonald v. City of Chicago case.
  Despite much of the rhetoric surrounding this case, McDonald v. 
Chicago isn't a case about gun control. It is a case about our 
constitutional, fundamental rights as Americans.
  Our freedoms in the Bill of Rights--including those of speech and 
religion and the press--are incorporated by the 14th amendment. They 
cannot be infringed upon by the states. The Supreme Court ruled on that 
issue long ago.
  The issue in McDonald is whether an individual's second amendment 
right to keep and bear arms must be protected against State 
infringement. The case follows the Court's landmark 2008 ruling in 
District of Columbia v. Heller. In Heller, the Court--for the first 
time--ruled that the second amendment protects an individual's right to 
keep and bear arms.
  There is precedent dating back more than 100 years that reaffirms 
that the second amendment applies only to the Federal Government. 
However, in 1873, the Court began to develop modern incorporation 
doctrine principles. These principles were used to determine if 
amendments apply to the States through the due process clause of the 
14th amendment.
  The Court in McDonald is likely to use the modern incorporation 
doctrine, rather than simply uphold precedent from its previous second 
amendment cases.
  The Supreme Court in Duncan v. Louisiana summarized the modern 
incorporation doctrine, stating, ``the question has been asked whether 
a right is among those fundamental principles of liberty and justice 
which lie at the base of all our civil and political institutions . . . 
whether it is basic in our system of jurisprudence . . . and whether it 
is a fundamental right, essential to a fair trial.''
  I believe the second amendment right to bear arms is a fundamental, 
constitutional right of law-abiding Americans. And, like most of the 
Bill of Rights, it must also be protected from unreasonable state 
restrictions.
  Since the Heller decision, three appellate courts have addressed 
whether the second amendment applies to the States. Two of the courts, 
the Second and Seventh Circuits, followed Supreme Court precedent. They 
held that the second amendment only applies to the Federal Government. 
This was not because the judges were in favor of gun control--as many 
tried to state during Justice Sotomayor's confirmation hearing. 
Instead, it was because they showed judicial restraint. They recognized 
that only the Supreme Court should overturn its own precedent. In the 
third case, the Ninth Circuit failed to follow Supreme Court precedent. 
Instead, it applied modern incorporation principles. It held that the 
second amendment is incorporated by the 14th amendment and protected 
against State infringement. Although I think the Ninth Circuit should 
have followed precedent, I agree with their analysis.
  I would emphasize this: Even if the Court decides that the second 
amendment does not apply to the States, citizens do not need to worry 
that people are going to start taking away their firearms.
  Forty-four State constitutions contain provisions addressing the 
right to bear arms. Most of these are much clearer than the Federal 
Constitution. They were adopted more recently and address specific 
issues such as concealed carry laws.
  New Mexico's Constitution states: No law shall abridge the right of 
the citizen to keep and bear arms for security and defense, for lawful 
hunting and recreational use and for other lawful purposes, but nothing 
herein shall be held to permit the carrying of concealed weapons. No 
municipality or county shall regulate, in any way, an incident of the 
right to keep and bear arms.
  I am confident that our citizens' right to bear arms will continue, 
regardless of the McDonald decision. However, I believe that the Court 
will hold that the second amendment is incorporated by the 14th 
amendment.
  When the Court asks whether the right to bear arms is ``among those 
fundamental principles of liberty and justice which lie at the base of 
all our civil and political institutions . . . and is deeply rooted in 
this nation's history and tradition,'' I have no doubt in the 
conclusion they will reach.

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