April 2010

Down Range: April 2010

MCDonald Oral Arguments

Over at our sister site GunReports.com, there’s an extensive eyewitness review of the recent Supreme Court March 2 oral arguments in McDonald, et al., v. Chicago, et al. (08-1521). Lawyer Lyle Denniston of Akin Gump gave what I thought was an even-handed account of the scene, moreso than what I got from people who lean our way on the 2nd Amendment.

Denniston’s take:

-The Supreme Court seemed poised to require state and local governments to obey the Second Amendment guarantee of a personal right to a gun, but with perhaps considerable authority to regulate that right.

-The dominant sentiment on the Court was to extend the Amendment beyond the federal level, based on the 14th Amendment’s guarantee of "due process," since doing so through another part of the 14th Amendment would raise too many questions about what other rights might emerge.

-It appeared that the focus of debate will be how extensive a "right to keep and bear arms" should be spelled out: would it be only some "core right" to have a gun for personal safety, or would it include every variation of that right that could emerge in the future as courts decide specific cases? The liberal wing of the Court appeared to be making a determined effort to hold the expanded Amendment in check, but even the conservatives open to applying the Second Amendment to states, counties and cities seemed ready to concede some—but perhaps fewer —limitations.

-The first argument to collapse as the hearing unfolded was the plea by the lawyer for gun rights advocates, Alan Gura of Alexandria, VA, that the Court should "incorporate" the Second Amendment into the 14th Amendment through the "privileges or immunities" clause. In the first comment from the bench after Gura had barely opened, Chief Justice John G. Roberts, Jr., noted that the Court had essentially scuttled that argument with its ruling in the SlaughterHouse Cases in 1873. And within a few minutes, Justice Antonin Scalia—the author of the Heller opinion and the Court’s most fervent gun enthusiast—was sarcastically dismissing the "privileges or immunities" argument.

-The Court then got the focus that a majority seemed to be hoping for: a full-scale plea, by former Solicitor General Paul D. Clement, to use the "due process clause" as the vehicle for extending gun rights to the state and local level. And it was during Clement’s time at the podium that the Court’s liberal bloc began making a case—which Clement essentially resisted—to limit the "incorporated" right to, at most, some core guarantee, without all of the variations that would later develop. Clement noted that there were "not a lot" of variations of the gun right yet, since Heller was the only precedent so far, and that was limited to gun rights for self-defense in the home.

-An attempt by an attorney for the cities of Chicago and Oak Park, Ill., defending local bans on handguns in those communities, to prevent any application of the constitutional gun right to states, counties and cities looked forlorn and even doomed.

To read up-to-date information on new firearms and firearms-accessory introductions, gun legislation, and the latest political efforts to restrict our 2nd Amendment freedoms, log on to our sister site, GunReports.com.