We don’t let the states “experiment” on the First Amendment. Should the Second Amendment receive any less respect?
In 1932, progressive Supreme Court Justice Louis Brandeis penned one of the most famous passages in American jurisprudence. “It is one of the happy incidents of the federal system,” Brandeis wrote in his dissent in New State Ice Co. v. Liebmann, “that a single courageous State may, if its citizens choose, serve as a laboratory, and try novel social and economic experiments without risk to the rest of the country.”
Since then, Brandeis’ famous words have been quoted or referenced countless times, appearing everywhere from legal documents to campaign speeches. Most recently, they surfaced in the arguments leading up to the landmark Second Amendment case McDonald v. Chicago, which the Supreme Court is set to hear in early March 2010.
At issue in the case is Chicago’s draconian handgun ban, a restriction that largely mirrors the gun control law struck down last year by the Supreme Court in District of Columbia v. Heller. The key difference is that Heller only decided whether the Second Amendment secures an individual right against infringement by the federal government (which oversees Washington, D.C.). McDonald will settle whether the amendment’s right to keep and bear arms applies against state and local governments as well.
That’s where Brandeis comes in. In Chicago’s view, the Second Amendment should have no impact on its vast gun control regime. As the city has argued to the Court, “Firearms regulation is a quintessential issue on which state and local governments can ‘serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.’” Thus, Chicago claims it should enjoy “the greatest flexibility to create and enforce firearms policy”
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