McDonald v. Chicago: Deciphering Your Rights

By Jeff Knox

Oral arguments in the Supreme Court case of McDonald v. Chicago were an interesting show on March 2. Most of the Justices made their positions on applying the Second Amendment to the states – and what mechanism to use to do it – fairly clear from the outset. Most observers agree that the Court will declare that states must recognize a fundamental right to keep and bear arms.

A secondary issue in this case is not just whether the Second Amendment should apply to the states, but also how it should get there. The 14th Amendment was written and ratified specifically for the purpose of, among other things, clarifying who is a citizen of the US and to make the rights of US citizenship applicable and enforceable in the states. That intent was thwarted however by a Supreme Court dominated by Justices with a strong state autonomy philosophy. In a ruling known as the Slaughter-House cases, the Court interpreted, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," to be limited in scope to only such rights or privileges as were bestowed by the Constitution, not those which pre-existed and were merely reiterated in that document.

In the 140 years since that egregious decision no Court has been willing to reverse their esteemed predecessors and open the Pandora's Box of "unenumerated rights" mentioned in the Constitution. Instead they created a novel construct around another clause of the 14th which says, "nor shall any State deprive any person of life, liberty, or property, without due process of law." They have used this clause to somehow selectively "incorporate" virtually all of the Bill of Rights. Now they are poised to do the same with the Second Amendment.

This controversy leads to much speculation about how the Court will split on this question. Roberts and Scalia very clearly want to incorporate under Due Process. Kennedy, Alito, and Thomas are likely to join them, but some of them could come out with a partial dissent favoring application of the right by means of the Privileges or Immunities clause rather than the Due Process clause of the 14th Amendment. Breyer, Ginsburg, and Sotomayor seemed resigned to the fact that incorporation is inevitable, but would clearly prefer to selectively apply some limited version of the Second Amendment with lots of room for restrictions. Stevens might be the lone holdout dissenting on the grounds that applying the Second Amendment in cities like Chicago will cost lives – as if guns are only used for crime.

After losing in the 7th Circuit and being granted a review by the SCOTUS, Alan Gura, attorney for Otis McDonald and the Second Amendment Foundation, decided to use the opportunity to try and restore the Privileges or Immunities clause to its proper place in constitutional law. Some didn't like that idea and so the NRA elbowed their way into the case to have their attorney, former Solicitor General Paul Clement, argue for the more traditional Due Process incorporation.

During the oral arguments Gura and James Feldman, Special Counsel for Chicago were both rigorously questioned, almost badgered, by the Justices to the point that neither ever got more than a few words out before being interrupted again. The contrast between this and how the Justices handled Clement, was simply startling. Clement was able to breeze through his talking points with only a few, very cordial interruptions for polite, agreeable questions.

It was very clear that the Justices – at least the vocal ones – were downright hostile to the idea of overturning and most were equally hostile to the idea of not applying the Second to the states. It was also clear that these justices were predisposed to buy what Clement was selling. That had to be tough on Gura. This was his case from the beginning and he was very unhappy when NRA forced their way in and took one third of his argument time. Then to have their lawyer come out the heroes of the day while Gura's arguments remained largely unuttered… It had to be frustrating, especially since Gura was planning all along to include Due Process in his arguments. Since Clement came in, Gura had little choice but to concentrate virtually all of his time on the Priviliges or Immunities argument.

In the end, it doesn't matter how the right to arms is applied to the states so long as it is applied. Of course, winning this case is only the beginning. There will be multiple lawsuits over many years costing millions of dollars, and still the citizens of Chicago will probably have a difficult – if not impossible – time acquiring and maintaining legal handguns for self-defense in their homes – much less out in the wilds of the city streets.

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