Pennsylvania Voices in McDonald

Pennsylvania lawmakers have played a role in the argument that the Second Amendment confers an individual right in state and local government. In case filings on behalf of the Chicago residents, several lawmakers have been actively making sure they let the Supreme Court know that the Second Amendment is important.

Attorney General Tom Corbett joined more than three dozen other state law enforcement officials in a brief filed on behalf of the petitioners.

The right to keep and bear arms under the Second Amendment is a “fundamental” liberty interest subject to incorporation against the States. Indeed, in the Anglo-American tradition, it is among the most fundamental of rights because it is essential to securing all our other liberties. The Founders well understood that, without the protections afforded by the Second Amendment, all of the other rights and privileges ordinarily enjoyed by citizens would be vulnerable to governmental acts of oppression. As St. George Tucker wrote, the right protected by the Second Amendment “may be considered as the true palladium of liberty” because “[t]he right to self-defence is the first law of nature,” and wherever “the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.” …

Accordingly, the Court should hold that the Second Amendment also secures a “fundamental” right that can no more be abrogated by local government than by the federal government.

In addition to Attorney General Corbett’s work with other state leaders, female lawmakers from around the country signed on to a brief that included representation from Pennsylvania. Representatives Karen Boback (R-117), Michele Brooks (R-17), Kathy Rapp (R-65), RoseMarie Swanger (R-102), and Katie True (R-41) all signed the brief that specifically represents the concerns of plaintiff Colleen Lawson, a 51-year-old hypnotherapist who survived a home invasion by three criminals while she was at home and sick with the flu.

In Heller, this Court emphasized that the text of the Second Amendment was the driving force behind the Court’s decision to find an individual right to firearms possession. This right includes the right to possess a handgun within the home. The Court’s previous Fourteenth Amendment selective incorporation jurisprudence is sufficient on that basis alone to hold Chicago’s handgun ban unconstitutional. However, because of the special importance to women of owning handguns, the Court could also consider incorporating that right using the Court’s privacy and personal autonomy jurisprudence protected by substantive due process. Not only would this approach be jurisprudentially consistent, but it could serve to strengthen the arguments that the rights of privacy and personal autonomy are likewise incorporated even though unenumerated.

Finally, Pennsylvania was also represented by members of the House and Senate alongside more than 875 other leaders in the general state lawmaker brief in favor of the plaintiffs. Representatives Michele Brooks (R-17), Bryan Cutler (R-100), Bill DeWeese (D-50), Glen Grell (R-87), Rob Kauffman (R-89), Mark Keller (R-86), John Maher (R-40), Daryl Metcalfe (R-12), Merle Phillips (R-108), Kathy Rapp (R-65), and Will Tallman (R-193) joined Senator Joe Scarnati (R-25) in signing this brief.

As State officials, we seek the assistance of this Court in securing the fundamental rights of our constituents and resolving ongoing uncertainty over the validity of State legislation regulating firearms.

Since this Court affirmed the fundamental right of the individual to keep and bear arms in District
of Columbia v. Heller, the States have been plagued by uncertainty surrounding the validity of their various ordinances and regulations on individual possession and use of firearms. In many instances, this uncertainty has impeded our ability to legislate.

In fact, we and many of our colleagues are reluctant to review, draft, or enact laws that impact this fundamental right, without interpretative guidance from this Court. Although we have no doubt that this fundamental individual right, embodied in the Second Amendment of the United States Constitution, is incorporated as against the States by the Fourteenth Amendment of the United States Constitution, this Court should use this case to confirm incorporation now.

We thank each of these lawmakers for choosing to join the right side of history in this case. If your representatives aren’t on the state lawmaker brief, you might consider dropping them a note to ask why they did not join.