Supreme Court Update: McDonald v. City of Chicago

By Ken Hanson, Esq.

Chicago and Oak Park have filed their brief ( with the U.S. Supreme Court in the McDonald v. Chicago Second Amendment case. By way of review, this case will decide whether the Second Amendment to the U.S. Constitution applies against the states, a process also known as Incorporation. Originally, the Bill of Rights and the Constitution served as restrictions against the Federal Government only. With the passage of the 14th Amendment to the U.S. Constitution, Constitutional rights and restrictions were now to be applied equally against the states.

To date, the law is that the Second Amendment does not apply to the states. The McDonald case seeks to change this, and asks the SCOTUS to Incorporate the Second Amendment against the states for the first time. Buckeye Firearms Foundation, the 501c3 charity associated with Buckeye Firearms Association, teamed up with the United States Concealed Carry Association to file an Amicus brief in support of incorporation. This brief was filed back in November, and it is now the time when Chicago/Oak Park and their amici supporters will be filing their briefs. The case is set to be argued March 2, 2010 with a decision expected in late June or July.

While the McDonald case is, at the core, a simple Incorporation case, a much larger battle is being waged within the pages of the pleadings in the case. At issue (indeed, more so than the question of 'whether to Incorporate') is a battle over HOW to Incorporate.

The 14th amendment contains two operable provisions, generally referred to as the "Due Process Clause" and the "Privileges and Immunities Clause" (DP or PI). To date, the law has operated almost exclusively through the DP clause, and the PI clause was in essence "stillborn" due to a decision 130+ years ago, commonly referred to as the "Slaughter-House Cases." The Slaughter-House Cases basically held that the PI clause was so restricted it was meaningless.

Thousands of pages are being spent, not on WHETHER TO INCORPORATE, but on HOW TO INCORPORATE. Most observers, and even some Chicago supporters, treat the question of Incorporation as a foregone conclusion, conceding that the Court will almost certainly apply the Second Amendment against the states. The evidence and the reasoning is almost overwhelmingly in favor of Incorporation. The Brady Center, for instance, spent their brief arguing over a level of scrutiny to be applied, and in essence surrendered the argument over Incorporation.

There are many interesting reasons to favor PI over DP, and a reversal of the Slaughter-House cases, but as those reasons are not firearm related, they will not be discussed further. A VERY exciting reason to support PI Incorporation is that one intention of the PI clause was to guarantee that states must treat all citizens equally. Thus logically follows nationwide firearm rights for non-residents visiting hostile states, such as Illinois.

Even though the real battle is shaping up over DP versus PI, and an attempt to revive PI as a sound doctrine, Chicago/Oak Park, in their brief, argue that Incorporation should not occur. Their brief, in essence, argues mostly policy. Their legal arguments amount to "the courts have never found for incorporation, so the court should not disturb this precedent." The most powerful argument against deferring to precedent is simple history – at various times separate was equal, you couldn't vote if you lacked a "y" chromosome, a person was 3/5 of a person and a person could not claim rights because of the color of their skin. Just as these legal concepts were recognized as wrong, and subsequently corrected, the prior cases against Incorporation are wrong and these cases should not continue to be worshipped by those wearing black robes.

Chicago also attempts to make the historical argument that the 14th Amendment was not intended to Incorporate the Second Amendment, and instead was intended to Incorporate other Amendments. Chicago's reasoning amounts to "The Second Amendment is the only Amendment to guarantee access to a deadly object, so it was intended to be treated differently." Alan Gura's brief does a good job of laying out the understanding of the 14th Amendment at the time of ratification, and really preemptively shreds Chicago's historical arguments.

It is the policy arguments made by Chicago/Oak Park that are truly mind-numbing. Chicago argues that localities need to be free to adopt laws to address the situation "on the ground" they face. Of course, once that door opens, there is no closing it. Free speech may be limited because of particular situations faced in Chicago. Chicago may limit the choice of worship to seven religions only because of particular situations faced. Well, given the proud tradition of dead people voting, maybe Chicago really does believe that some are more equal than others.

Chicago also argues that Incorporation will destroy their ability to preserve peace and tranquility in Chicago. (Because Chicago, aka the Murder Capitol of the USA, is currently doing such a great job of preserving peace and tranquility with their bans...) No, really, they argue this. To put the cherry on top of this nonsense sundae, they argue that people are not free to choose a method of self-defense, and that the government may determine which methods are acceptable and which are not. So as long as Chicago allows you access to, for instance, a wooden rolling pin, they aren't depriving you of self-defense when they ban firearms. (Not that there is a right to self-defense, anyway, or so they argue.)

For no other reason than to understand your enemy, you should read at least the "Summary of Argument" section of this brief.

Ken Hanson is a gun rights attorney in Ohio who serves as the Legislative Chair for Buckeye Firearms Association. He is the attorney of record for Buckeye Firearms Foundation, which filed an amicus brief in the Heller case. In 2008, the National Rifle Association's Institute for Legislative Action (NRA-ILA) awarded him with its Defender of Justice Award. He is the author of The Ohio Guide to Firearm Laws, a certified firearms instructor and holds a Type 01 Federal Firearms License.

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