Debate Reigns in Supreme Court Hearing for Chicago’s Handgun Ban
March 10, 2010 at 08:29
For those following my blog posts regarding firearms rights or to anyone closely following the news at all, last week was a big week for those involved on either side of the gun rights argument, with the recent arguments in the U.S. Supreme Court in the case of McDonald v. City of Chicago. However, it only appeared to be a good day for one side…
With Alan Gura (of Heller fame) and Paul Clement (strangely, also of Heller fame in a different way…) on the gun rights side and James Feldman representing the City of Chicago, the scenario was set for an impressive face-off. Alan Gura took the more difficult road of arguing for incorporation via the Privileges and Immunities Clause with Paul Clement taking the Due Process avenue. Without getting into too many technical details, the P&I clause is thought to be by many as a legitimate road to incorporation but could have larger implications outside of gun rights if it is successfully argued and old case law thrown out. Although the Justices certainly appeared interested in the idea, there was very apparent hesitation on their part to change over a 100 years of case precedence to go this route. Clement, on the other hand, took the NRA’s position of incorporation through Due Process, an argument first heard in the oral arguments when Justice Scalia actually brought it up to Gura as being the easier route. Clement calmly breezed through his portion with no mention from the Justices of his previous involvement on the other side of the equation with Heller. After Gura and Clement were done presenting their respective arguments, it was obvious the odds were favoring incorporation of the 2nd Amendment.
When James Feldman’s turn arose, it was clear he would have his work cut out for him in arguing that the 2nd Amendment should not be incorporated to the States. That work load appeared to be too much as Justices Scalia and Roberts continually questioned what argument he was trying to make while Feldman appeared to avoid questions, change arguments and revert back to pre-Heller arguments. Although some of the liberal leaning Judges would occasionally “throw him a bone”, there did not appear to be too much going well for Feldman or who he is representing, the City of Chicago.
While incorporation is hardly a done deal, it looks like a major point of the outcome of these arguments will be (if incorporation is indeed granted) what level of scrutiny will be relevant when gun laws are challenged on a Constitutional basis. If “reasonable regulations” are accepted, as they almost certainly will be, what will encompass “reasonable”? Although Chicago’s handgun ban will likely not be found to be reasonable (just as D.C.’s ban was not in Heller), will “assault weapons” bans in some states or locales hold up? How about gun registration? These are all questions that probably won’t be explicitly answered by the Court’s decision, but there will be a much better idea than we currently have.
Here is a link to the Supreme Court oral arguments (PDF) for those of you who are interested. Although long, they are certainly intriguing and a relatively quick read. Look for a decision sometime in June of this year.