McDonald v. City of Chicago: How Limited Will The Right Be?

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Yesterday the United States Supreme Court heard oral arguments in the case of McDonald v. City of Chicago. It appears from comments made during arguments that probably the court will incorporate the Second Amendment into the Fourteenth Amendment via the “Due Process Clause” and not entertain the idea of opening a can of worms by incorporating with the “Privileges or Immunities Clause”. On the surface it would appear that gun rights advocates will win another victory in that a ruling of incorporation would say that the rights guaranteed under the Second Amendment extend beyond the scope of the federal government and forces the states and local communities to honor that right. But how much?

District of Columbia v. Heller ruled that citizens have a right to have a gun in their homes to protect themselves. The ruling made it clear that the Second Amendment guaranteed an individual the right to keep and bear arms. What didn’t get decided in Heller was what, if any, restrictions on those guaranteed rights were allowable. It appears McDonald will not tell us that either.

There is no clear cut established “gun right”. It is not defined. The only thing that has shaped gun rights or gun restrictions, has been state and local laws through our jurisprudence. As we have seen, some of those restrictions have gone so far as to deny certain citizens the right to possess a gun at all, as was the case in Heller, in the District of Columbia and McDonald, in Chicago.

If SCOTUS should rule to force Chicago to abide by the Second Amendment through the “Due Process Clause” of the Fourteenth Amendment, then the question becomes, how much? Will the court offer any ruling as to where Chicago should begin?

In oral arguments, former Solicitor General Paul D. Clement, representing the NRA, suggested that there should be a “carry over” of Second Amendment laws along with the Fourteenth Amendment incorporation.

Personally, I believe the Court will react much the same way it did in Heller. They will make a ruling of whether Second Amendment rights extend to the states and then leave it up to the courts to hammer out what will then become “reasonable” restrictions on guns.

After Heller, even though the High Court ruled that a ban on gun ownership was unconstitutional, the District of Columbia did not make it easy for anyone to get a gun and register it. I foresee the same events in McDonald.

Tom Remington