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Guns, guns, guns

Sometimes oral argument gives you no clue as to how an appellate court is going to rule on a case.  Sometimes it does.  The oral argument before the US Supreme Court on Tuesday in McDonald v. City of Chicago is definitely of the latter variety.

McDonald was the natural consequence of the Court's decision two years ago in District of Columbia v. Heller that the 2nd Amendment provided an individual, rather than collective, right to bear arms.  The District of Columbia being a federal enclave, of course, Heller applied only to the Federal government.  The next logical question is whether that's applied to the states through the 14th Amendment.

The precise mechanism by which it would be applied occupied a lot of the talk, especially in academic circles, leading up to the argument.  After some fits and starts, the Court has used the Amendment's Due Process Clause as the method of incorporating the Bill of Rights and making them applicable to the states.  Although there was heavy criticism of this approach in the '60's and '70's, mostly led by Harvard Professor Raoul Berger, more recent research has shown pretty conclusively that the Framers of the 14th did intend it to apply the Bill of Rights to the States.

The research has also shown that the Framers actually intended the vehicle of incorporation to be the Amendment's Privileges and Immunities Clause, but that clause was rendered dormant by a series of Supreme Court decisions in 1876.  Much of the buzz prior to oral argument was the argument of McDonald's attorneys that the Court overrule those cases and resurrect the P&I Clause.   That argument went nowhere; Alan Gura, McDonald's lawyer, hadn't gotten three paragraphs into it before Roberts jumped all over him, and Scalia buried the contention:  "[W]hy are you asking us to overrule 150, 140 years of prior law. . . unless you are bucking for a place on some law school faculty."

With that out of the way, the discussion turned to two topics:  first, whether the right should be incorporated, and secondly, the exact nature of the right.  The test the Court has ultimately settled on for determining whether a right should be incorporated is whether it is "fundamental to a concept of ordered liberty."  In McDonald, that raised a question:  whose "ordered liberty" are we talking about?

In several cases in recent years, the Court has referenced the laws of other countries; for example, in determining whether imposition of the death penalty on juveniles or the mentally retarded offended the "evolving standards of civilization," the Court looked to how other nations applied the death penalty to those groups.  This aroused the ire of conservative groups, even to the point of the Federalist Society proposing an amendment prohibiting the Court from using foreign law to interpret the Constitution.

McDonald offered the possiblity of the Court wading back into those troubled waters, because the best argument against incorporation is this:  if a right to bear arms is so fundamental to a concept of ordered liberty, why does virtually every other democracy in the world have far more restrictions on gun possession than we do?  Nobody raised that argument, though, probably because the pro-incorporationist judges  pre-empted it by arguing that the "ordered liberty" should be determined solely in light of American law and traditions.  As Roberts noted, there is no right to jury trial in Japan, yet nobody would think of contending that this meant it shouldn't be regarded as fundamental in this country.

With that argument off the table, the City had little wiggle room, other than to contend that gun regulation had historically been left to the states and cities to sort out.  But that was pretty much the same argument made by the District in Heller, and it didn't get them anywhere.  In fact, the difficulty that Heller posed for the City was aptly summed up in a question by Kennedy:  "How could some member of the Court write this opinion to say that this right is not fundamental, but that Heller was correct?"

As I mentioned on Monday, the decision in Heller was met with predictions in various quarters -- including here -- that it could lead to re-examination of a number of gun regulations, such as bans of certain weapons, weapons disability laws, and even laws regarding the use of a weapon in a crime.  None of that panned out, of course, but it didn't keep me from predicting, when the briefs were filed in McDonald, that "the Court in McDonald, unlike in Heller, will have to tackle the question of whether gun regulations will be subject to strict scrutiny, the rational basis test, or something in between."

Well, that's one more reason why you're not going to see my name on the Psychic Hotline list.  Not only was there no discussion of what level of scrutiny gun regulations would be subject to, it's not entirely clear that any regulations other than an outright ban would be affected.  And an outright ban on all weapons; even Scalia agreed that some types of weapons could be banned; "we said as much in Heller."

At the risk of making two different predictions on the same subject and getting them both wrong, it's beginning to look like Heller isn't going to have nearly the impact that many thought it would have.  In fact, the push to have the 2nd Amendment deemed an individual right, an effort which has occupied the gun rights lobby for the past fifty years, turns out to have been largely an empty exercise.  Without Heller, the NRA and other gun rights supporters have defeated the re-authorization of the assault weapons ban, and have persuaded virtually all states to adopt some form of concealed-carry law.  It may be that future decisions will flesh out the scope of the right to bear arms granted in Heller, but for now, and for McDonald, it appears that it will be little more than the right to possess a gun in one's home.  A total ban on possession is out; nobody seems too willing to examine the issue beyond that.


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