Legal Expert Avery Friedman sees little hope for Chicago at Supreme Court

October 6, 4:21 PMChicago Gun Rights ExaminerDon Gwinn

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Most observers agree that Justice Antonin Scalia, right,
Chief Justice John Roberts, left, will be cornerstones of at
least a 5-4 majority for incorporation of the 2nd Amendment.
(AP Photo/Charles Dharapak)

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"Unless Justice Kennedy does an about-face," Friedman says, "the chances of the survival of Chicago's ordinance are about as high as Sonny Corleone in the toll booth."

By now, there are few gun owners left who have not heard that the Supreme Court will hear arguments in McDonald v. Chicago this term, with a decision likely to be announced by June of next year. The plaintiffs in the case, together with the Second Amendment Foundation (SAF) and the Illinois State Rifle Association (ISRA), argue that Chicago's famous gun registration and handgun ban violate the 2nd Amendment, while Chicago argues that the 2nd Amendment does not apply to local or state governments.

At present, Chicago's view is technically correct. As the 7th Circuit judges said during oral arguments for McDonald v. Chicago, the appellate courts don't have the power to overrule Supreme Court decisions even if they're pretty sure they know how the Supreme Court would rule, given the chance. So, do the lower courts have a handle on what the Supremes are thinking when it comes to incorporation?

After all, Antonin Scalia himself said in the Heller decision's famous "Footnote 23" that:

“With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.”

Most experts seem to agree that this recitation of ancient cases coupled with the court's eagerness to take up the issue of incorporation even with no conflict among the lower circuits indicate that a majority of Justices are not satisfied with the status quo.  Recently, Steve Chapman reported in the Chicago Tribune that "law professor Ronald Rotunda of Chapman University told me that he gives the Chicago law only a one in five chance of surviving." And Rotunda is not alone. Avery Friedman, one of television's favorite civil liberty experts and legal consultants, told the Chicago Gun Rights Examiner yesterday that although he isn't personally opposed to most local gun control ordinances across the country, he sees little hope for Chicago's gun ban at the Supreme Court. "Unless Justice Kennedy does an about-face," Friedman says, "the chances of the survival of Chicago's ordinance are about as high as Sonny Corleone in the toll booth."

For more info: 

• www.chicagoguncase.com
• www.saf.org
• www.isra.org