Last year's Supreme Court decision in the case of District of Columbia vs. Heller (Heller, the plaintiff in the initial case, is listed second because DC filed the appeal) determined that the 2nd Amendment to the US Consititution protects an individual Right to Keep and Bear Arms, and that DC's comprehensive gun ban violated that right. But, because the case was filed in DC, which is not a state, the ruling only applied to acts of the Federal government. The applicability of the Right to actions by State and local governments was not decided. It couldn't have been, as that issue was not before the Court.
That will now change.
Today, the Court decided to grant certiorari in the case of McDonald vs. Chicago. The complaint seeks to invalidate the City of Chicago's handgun ban by applying the individual right found in Heller to State and local laws. This process is called Incorporation.
In taking only McDonald, the Court discarded the other Chicago case, NRA vs Chicago, as well as Maloney vs Rice, a case in New York filed by a martial-arts enthusiast challenging a New York State law banning the possession of nunchucks. Since Justice Sotomayor was on the court that heard Maloney, there was some question as to whether she would have had to recuse herself if the Supreme Court had granted cert in that case.
By why did the Supremes reject the 7th Circuit's decision to combine McDonald and NRA, and hear only McDonald?
Two guesses, and they're related:
- McDonald was filed and argued by Alan Gura, the lawyer who brought and won Heller. So, they've decided to go with a proven winner (on the pro-gun-rights side.) Reading into that, it's not hard to come up with a scenario of sympathy toward Incorporation. There are also some footnotes in Heller that support this.
- Gura (wisely, in my view) explicitly asked for Incorporation under the 14th Amendment's "Privileges and Immunities" clause. That language was read completely out of the Constitution in a series of cases in the late 1800s that pretty much everybody today thinks were not only wrongly decided, but decided on racist grounds. Basically, the Court in Slaughterhouse tried to kill the 14th Amendment because it would have made it impossible for States to discriminate against black people.
Gura also argues for Selective Incorporation under the "Due Process" clause of the 14th, which is the process that the Court came up with in the 1920s to begin applying the Bill of Rights to the States. As he should... you want to preserve every avenue you can to win a case. But in going after P&I, Gura has done something very, very smart.
He's provided a means to get the liberal Justices to agree to something that their personal feelings about guns and gun control would otherwise make them unlikely to support.
Restoring P&I to the Constitution opens up a huge new avenue for civil rights litigation. There a whole lot of things that liberals don't like that can be undone if all US citizens are required by the Constitution to have the same rights, no matter where in the country they live.
So, what say you? Should the 2nd Amendment be Incorporated? If so, should it be under "Privileges and Immunities" or "Due Process"? And if P&I is back, what will that mean for other issues that we care a lot about?
You have the floor.
--Shannon