The Supreme Court Takes on Guns, Again

It has been only a year and a season since the Supreme Court shook the world of Second Amendment jurisprudence with the historical D.C. v. Heller decision. In that case, the court declared for the first time that the Second Amendment protects an individual right to bear arms against infringement by the federal government—at least commonly used arms, for self-defense in the home. Heller opened the gates for a flood of new lawsuits by gun-rights friendly attorneys and organizations, most prominently the National Rifle Association and the Second Amendment Foundation. One of those cases, McDonald v. Chicago, challenging a gun ban in Chicago that's similar in most respects to the D.C. gun laws overturned in Heller, has just been taken up by the Supreme Court. The counsel who will be arguing McDonald before the court in early 2010 is the same man who won Heller, Alan Gura. Although McDonald's challenge to Chicago's laws has so far lost at both the district court level and at the 7th Circuit Court of Appeals, Gura is confident he'll win. The Chicago laws at issue are as significant a violation of a citizen's right to bear arms as were D.C.'s. Chicago residents can't have a gun without registration, can't register handguns, can't register a gun that's already in their possession, and if they miss a yearly deadline to re-register, that weapon becomes forever unregisterable. Gura and the Second Amendment Foundation (with the Illinois State Rifle Association) have pulled together a set of plaintiffs with personal tales of having their quality of life lessened by the gun ban. Following Heller, it might seem clearcut that Chicago's gun control laws should meet the same fate as those in Washington, D.C. So why hasn't it worked out that way? The reason is that the Second Amendment, rare among the fundamental rights laid out in the Bill of Rights, has never been held to apply to actions of any government entity other than a federal one. (Of course, it wasn't even considered to do that until Heller.) In the legal lingo, the Second Amendment has not been "incorporated" against states and localities via the 14th Amendment. By contrast, the First Amendment (Gitlow v. New York), Fourth Amendment (Mapp v. Ohio), and others have been (but not, yet, the Third or Seventh). Furthermore, there is currently some disagreement on this question among different districts of the federal appeals court system...read more