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Ending months of speculation, the Supreme Court has agreed to hear arguments about the Constitutional permissibility of Chicago's handgun ban. Presumably, to come to a ruling on that, SCOTUS will have to finally rule once and for all on whether or not the Second Amendment is incorporated under the Fourteenth Amendment--whether, in other words, the Second Amendment is binding on not only the federal government, but on state and local governments, as well.
The Supreme Court announced this morning it will hear a challenge to Chicago's gun restrictions that will determine if local handgun bans are legal.
Last year, the high court ruled the 2nd Amendment gave individuals the right to possess firearms and struck down Washington, D.C.'s gun bans.
Left open was the question of whether states and local governments are required to do the same.
But the court said today it will review a lower court ruling in the case of McDonald vs. City of Chicago that upheld a handgun ban in Chicago. That action court potentially could set in motion a nationwide re-establishment of the right to bear arms. The case will be argued next year.
This is, obviously, rather a big deal in the gun rights debate. A right that can be trampled by any unit of government is, after all, more a privilege than a right.
How the court will rule is, of course, a tricky one to call. Anyone following both gun rights issues and the Supreme Court will be aware that newly appointed Justice Sotomayor was opposed by many concerned about gun rights. Much of the basis for that opposition stems from her ruling, as part of a three-judge panel in the New York appeals court, that the 2nd Amendment is not incorporated under the 14th Amendment, thus giving state and local governments free rein to ignore the right to keep and bear arms as they see fit.
The implication would seem to be that she is not inclined to support the idea of 2nd Amendment incorporation. That is not necessarily the case--the ruling, if I recall correctly, did not specifically argue against incorporation, but that any decision on that would have to be made by the Supreme Court.
Having said that, I rather doubt that she will be persuaded to support incorporation (her exchange with Senator Lindsey Graham during her confirmation hearings did nothing to ease those doubts). Still, given the fact that she comes to the Supreme Court as the replacement for Justice David Souter, who would also have been somewhat unlikely to support incorporation, I am not convinced that her arrival will have much of an impact on the decision.
It should also be kept in mind that a ruling in favor of incorporation will be far from a "knockout blow" for gun rights. Such a ruling would serve only to make the Heller ruling apply everywhere, and it has become rather apparent that Heller will be interpreted as permitting nearly every gun law short of an outright ban.
Still, this is an important case, and bears close watching. Keep up with it at ChicagoGunCase.com.
Comments
It's so grating that this whole business of "incorporation" ever got any legitimacy at all. Apparently the plain language of the Constitution as "supreme law", and of the BoR (without which we would HAVE no Constitution) as protecting individual rights as an integral component of the supreme law, is simply not enough for some people. Only by legitimizing the discussion of "incorporation" can there be the even more disgusting aberration of "selective" incorporation. This--ahem--"legal concept" somehow asks us to believe that Original Intent was to treat one part of the BoR differently than the others, despite clear continuities of language, contemporary history and, well, the whole GD point of the BoR protecting the people from their own governments (that's PLURAL).
"Selective incorporation" is nothing more than a stalling tactic to enable the state an end-run around its own charter document for as long as possible.
As if WE could get away with "selectively" obeying laws...
Kurt, it looks like David C (National GRE) has posted on this today as well, and I got a little uppity over there too, adding this:
If nothing else, we should always remember to put this in its proper context. The "news" here is that the state has agreed to review whether the state is correct in judging the actions of agents of the state in enforcing laws passed by the state upon citizens of the state, as legitimate or not under the laws governing the state as interpreted by the state.
I'm not exactly holding my breath.
This will go one of two ways: either the supreme court jesters will say the 2A is not "incorporated", OR it will say it IS, but that any "restriction" is just fine (like in Heller).
Either way, it is not going to be a "legal" win for freedom. I am so glad my rights don't depend upon those who have a vested interest in violating my rights! Lock and load.
This can be huge. If 2A is incorporated, it will mean its a fundamental right. That means courts must use strict scrutiny when judging gun laws.
Wow. Finally.
Kevin you seem to have forgotten US history - the US Constitution was written to define and constrain the new national government. You are correct that without the Bill of Rights we would have no constitution - but that it because the states wouldn't have agreed to form that new government without those major protection from its power!
Your error is to conflate the states' desire to limit the power of the new national government with a limit on the states' own powers. Why would the states have meant the US Constitution to limit their own powers?
The answer is that it didn't; none of the Bill of Rights applied to the states until the 14th Amendment came along. But besides protecting the newly freed slaves from state-sponsored discrimination ("privileges and immunities, equal protection, and due process") in the south, the 14th Amendment was very vague on the new powers the national government had over the states.
I TOTALLY DISAGREEE with HISTORY!
The original text of the US Constitution contained language "incorporating" it entirely against the states. Simply read Article IV, Sections 1 and 2 and Section VI. You know phrases like, "The citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." And, "This Constitution,..., shall be the supreme law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding." CONTINUED...
CONT.... And, "... all executive and judicial Officers, both of the United States and of the several States shall be bound by Oath or ...."
Plus, all the States were required to "ratify" the US Constitution. Why be required to ratify something if you're NOT being required to comply with it?
The "Incorporation doctrine" is nothing more than legal BS promulgated by corrupt courts so they could rationalize the violation of both the US Constitution and their Oaths to uphold it as the "supreme law of the land."
HORSES^*T!!
Kent, Heller did not say any restriction is fine. Scalia just named off a few acceptable limits (felons, mentally ill, concealed carry in sensitive places). The antis are claiming this as support for stupid regs. It is not the case.
Again, do not dismiss the importance of this case. An acceptance of 2A as a "fundamental" right is huge and will throw into question many local regs.
"none of the Bill of Rights applied to the states until the 14th Amendment came along"
Look, we certainly agree that state governments, being governments, will have no more appetite for self-restraint than national ones--and certainly will act to their own self-aggrandizement as well. Granted. But that statement is just BS. Court sophistries then were no more legitimate than similar sophistries now, and the biggest of those besides the damnable "commerce clause" is this "selective incorporation" crap. Can you not read into the 14th Amendment the attitude of "look, you idiots, since you won't knock it off on your own we're going to further clarify it for you"? What is it that makes you think that the people in the several States were perfectly fine (to the point of ratification) with protection from the national government, but not from the state government?
Paladin makes the textual point well enough; I'm satisfied with the failure of the basic smell test.
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