McDonald v Chicago
Tuesday's Supreme Court oral arguments in the case of Otis McDonald, et. al, versus the City of Chicago were not a Heller rematch.
They were the next logical step in establishment of the base of legal precedents that will finally decide if the Second Amendment of the Constitution of the United States is really an individual right that may not be regulated out of existence by state or municipal governments.
On the surface, McDonald, et al, v. Chicago, et. al is set to answer a question that sounds simple: does the Second Amendment apply to state, county and local governments the way it does to the federal government?
For nearly 220 years, the lower governments have taken the position that the Second Amendment was a collective right -applicable to militias, not individuals.
In essence, they have ignored the individual right to firearms possession through the passage of firearms laws that range from unreasonable to ridiculous.
Today, however, 90 million Americans in possession of an estimated 200 million firearms aren't quite so convinced that any political appointee has the authority to deny their right to firearm possession.
Especially when laws like Chicago's essentially forbid the ownership of a handgun. Chicago suburb Oak Park's goes even further, making it a crime for anyone inside the city limits to have a gun small enough to conceal on the person.
Today's arguments were the logical next step in overturning laws that nearly everyone - including the attorneys for the other side- agree are void if the Second Amendment really is an individual right.
As it was put by Alan Gura when questioned by Justice Sotomayor, "states may have grown accustomed to violating the rights of American citizens, but that does not bootstrap those violations into something that is constitutional."
And that was the central core of the oral arguments. Does the City of Chicago have the legal ability to restrict handgun ownership?
Not if they respect the Constitution, said Gura.
At that point, Paul D. Clement, representing the National Rifle Association stepped in, making the case that, well, there really wasn't much wiggle room, the Second Amendment says, clearly, that the right to keep and bear arms is a right, not subject to encroachment by federal, state or municipal government.
Not so, argued University of Pennsylvania Law Professor James A. Feldman, taking on the role of Special Assistant Corporation Counsel for the City of Chicago. "States and local governments," he said, "have been the primary focus of firearms regulation in this country for 220 years."
In other words, the position of the City of Chicago was, simply put, state and local governments have always had this right, and they have no intent of giving it up.
Based on the arguments, it would seem that the cities of Chicago and Oak Park should both be prepared to surrender that right.
"It was a good day," said Chris Cox, NRA-ILA head, "I'm glad we had Paul Clement making the case for the incorporation of the extension of gun rights."
That was Clement's purpose..to make a solid case focusing the "due process clause" as a vehicle for extending gun rights to the state and local levels.
Where Gura's argument was much more far reaching in its scope, Clement was taking the solid meat-and-potatoes approach. As Justice Scalia observed, Gura's position was a darling of law professors, but not really one the court relished taking on.
Based on conversations with firearms industry leaders, including NSSF's Steve Sanetti and Larry Keane, however, it might be too-early to be breaking out the champagne.
"One thing I've learned," Sanetti told me after the arguments, "is that trying to handicap the Supreme Court is a losing proposition."
That having been said, many observers were nearly encouraged at the fact that for the justices to uphold the Chicago and Oak Park bans, they would have to acknowledge, at least minimally, they were wrong in the Heller decision.
For Chief Justice John Roberts, Justice Clarence Thomas, Justice Samuel Alito, and Justice Anthony Kennedy that would be the equivalent of reversing their own decision. It is obvious, however, dissenting Justices Breyer, Stevens, and Ginsburg still disagree. In two instances, the attorneys stood quietly while Justices Breyer and Scalia argued whether extending the right of the Second Amendment would embrace "all of the refinements" the court would make or "just the core of the right."
The justices reached no conclusion, but Gura made it plain that firearms advocates were going for the full scope of whatever rights the Second Amendment were found to cover.
So what will happen?
Nothing quickly, but it is safe to say that when the Supreme Court comes into discussions on this case starting next week, it will be an energetic discussion.
Will the Chicago and Oak Park bans be overturned?
Most likely, but it's a crap shoot on how vigorously the Supreme Court will pursue the matter beyond that.
While this case gives the opportunity for the court to take far-reaching action, the Supreme Court is not known for such sweeping decisions. In this instance, it would seem the court is willing, as Justice Scalia wrote in Heller, to allow the body of jurisprudence in relation to the Second Amendment move forward on a case by case basis.
It's called "selective incorporation" of certain rights. And it's likely that the ruling in this case may be seen as a partial win for both sides. For pro-gun groups, it's likely Chicago and Oak Park will see their bans ruled unconstitutional. For anti-gun groups, it's also likely that the court will leave room for "reasonable restrictions" based on individual circumstances.
When it comes to the right to own firearms, however, there doesn't seem to be any discussion in the court as to whether that right is, in fact, an individual "right" for all Americans. It's the degree to which that "right" may be regulated that is still the cause for concern.
Editor's Note: You can read the entire transcript of the McDonald v. Chicago oral arguments at: http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-1521.pdf