Supreme Court will consider challenges to gun control under the Second Amendment

 Supreme Court to decide if the Second Amendment applies to states

The Supreme Court announced last week that it would consider a case which will decide one of the most important Second Amendment questions since District of Columbia v. Heller.

In District of Columbia v. Heller, the court considered the constitutionality of gun control laws in the District of Columbia.  The court found that the laws violated the Second Amendment by barring law-abiding citizens from keeping a firearm in their home for self-defense.  This decision also put to rest the issue of whether the Second Amendment protected individual rights as opposed to a right tied to "militias".

The Heller decision did not address whether the Second Amendment also applies to the states.  There have been several prior decisions, all dating to the last century that have said that the Bill of Rights does not incorporate to state law.

The new case to be considered is McDonald v. Chicago.  This case was brought by residents of the city of Chicago who feel that the handgun ban there is a violation of Second Amendment rights, not unlike the law struck down by the Heller decision.

The primary provisions of the current Chicago law being challenged include: 

• a ban on the registration of handguns in Chicago, creating what amounts to a total ban on handguns
• a requirement that guns be registered prior to acquisition, which is not always possible
• a requirement to re-register guns annually, which is effectively a tax on the exercise of Second Amendment rights
• a law making any gun permanently non-registerable if its original registration lapses

The case hopes to convince the Supreme Court that the Second Amendment is a "fundamental right, deeply rooted in our nation's history and traditions" and should therefore be incorporated against state and local governments.  This means that state and local governments could not pass laws that are in conflict with the Second Amendment.

This would also mean overturning a precedent previously set by the court in 1873.  The so-called Slaughter-House Cases detemined that the Fourteenth Amendment Privileges or Immunities clause did not apply the Bill of Rights to the actions of the states.  If Slaughterhouse is overturned, the entire Bill of Rights would be applied to the states.

While the implecations of this decision are tremendous for firearms proponents, there are other significant potential outcomes as many constitutional guarantees that are not currently applied by the states would be applied automatically as a result of any reversal of Slaughterhouse.

Alan Gura will argue the case on behalf of the McDonald plaintiffs.  Gura successfully argued D.C. v. Heller last year.  Gura noted in a recent interview that "the freedoms we enjoy as Americans are secured to us against violation by all levels of government.  State and local governments should be on notice:  the Second Amendment is a normal part of the Bill of Rights, and it is coming to your town."

McDonald v. Chicago will undoubtedly be one of the most closely watched cases in years as its implications for the Second Amendment as well as the rest of the Bill of Rights could have far reaching effects on preventing encroachments on individual liberties by state and local governments. 

Oral arguments are expected in February with a decision expected before the end of June 2010.