Sept. 30, 2009

Ending months of speculation, the Supreme Court has agreed to hear arguments about the Constitutional permissibility of Chicago's handgun ban. Presumably, to come to a ruling on that, SCOTUS will have to finally rule once and for all on whether or not the Second Amendment is incorporated under the Fourteenth Amendment--whether, in other words, the Second Amendment is binding on not only the federal government, but on state and local governments, as well.

The Supreme Court announced this morning it will hear a challenge to Chicago's gun restrictions that will determine if local handgun bans are legal.

Last year, the high court ruled the 2nd Amendment gave individuals the right to possess firearms and struck down Washington, D.C.'s gun bans.

Left open was the question of whether states and local governments are required to do the same.

But the court said today it will review a lower court ruling in the case of McDonald vs. City of Chicago that upheld a handgun ban in Chicago. That action court potentially could set in motion a nationwide re-establishment of the right to bear arms. The case will be argued next year.

This is, obviously, rather a big deal in the gun rights debate. A right that can be trampled by any unit of government is, after all, more a privilege than a right.

How the court will rule is, of course, a tricky one to call. Anyone following both gun rights issues and the Supreme Court will be aware that newly appointed Justice Sotomayor was opposed by many concerned about gun rights. Much of the basis for that opposition stems from her ruling, as part of a three-judge panel in the New York appeals court, that the 2nd Amendment is not incorporated under the 14th Amendment, thus giving state and local governments free rein to ignore the right to keep and bear arms as they see fit.

The implication would seem to be that she is not inclined to support the idea of 2nd Amendment incorporation. That is not necessarily the case--the ruling, if I recall correctly, did not specifically argue against incorporation, but that any decision on that would have to be made by the Supreme Court.

Having said that, I rather doubt that she will be persuaded to support incorporation (her exchange with Senator Lindsey Graham during her confirmation hearings did nothing to ease those doubts). Still, given the fact that she comes to the Supreme Court as the replacement for Justice David Souter, who would also have been somewhat unlikely to support incorporation, I am not convinced that her arrival will have much of an impact on the decision.

It should also be kept in mind that a ruling in favor of incorporation will be far from a "knockout blow" for gun rights. Such a ruling would serve only to make the Heller ruling apply everywhere, and it has become rather apparent that Heller will be interpreted as permitting nearly every gun law short of an outright ban.

Still, this is an important case, and bears close watching. Keep up with it at ChicagoGunCase.com.

Supreme Court to decide Chicago gun rights case link