By John M. Rogitz

Yesterday the Supreme Court heard oral arguments on what will prove to be a landmark Second Amendment case.  In the wake of the Court’s 2008 decision in D.C. v. Heller, where the Supreme Court struck down Washington, D.C.’s handgun ban, a tremendous amount of litigation has ensued.  That has been primarily because the issue in Heller was a federal law in the District of Columbia, and the cautious Roberts Court did not explicitly hold that it also applied to state and local gun control laws.  Enter oral arguments on McDonald v. Chicago, heard by the Justices yesterday to determine whether Chicago’s outright ban on handguns is Constitutional.

Yesterday’s session accordingly focused on whether the Second Amendment should also be a check on state and local gun controls.  Extending protections found in the Bill of Rights to state laws is known as the “Incorporation Doctrine.”  That doctrine essentially imputes to the states the same restrictions that the Federal government is bound by under the first ten amendments on a right-by-right basis.

I’m sure many of you may be wondering how one could possibly construe the Bill of Rights to NOT extend to the states, and understandably so.  That’s because that presumption has been almost uniformly applied throughout our nation’s history.  As Justice Kennedy noted yesterday, the right to a jury trial in civil cases and the right to a grand jury for state felonies are among the few rights found in the Bill of Rights that have not been extended the states.

As you might have guessed, the militia clause of the Second Amendment was one of the first things discussed yesterday.  Some other Constitutional arguments having nothing to do with the Second Amendment were also discussed, such as reviving the Privileges or Immunities clause of the Fourteenth Amendment.

Like Justice Scalia, I disagree with the argument that the Second Amendment was only intended to extend to our “militias” and not to private citizens.  Did we really need an amendment telling the American people that our armies were allowed to use firearms to protect us?  That is like saying go ahead and use the Earth’s atmosphere to help you breathe.  To his credit, attorney James Feldman got one piece of history right when he argued on behalf of Chicago that: “[T]he reason it was codified… was because the framers were concerned about the Federal government disarming the militia.”

That is indeed true.  But in my view, the problem with that position is that Revolutionary militias were not composed of soldiers but of private citizens.  So even if the Framers were concerned that the Federal government would strip the militias of their arms, they were more fundamentally concerned that the Federal government would strip citizens of their arms for self-defense, whether that defense was against an intruder or the Federal government itself.  This is the source of the erroneously overly restrictive interpretation of the Second Amendment, which would limit its guarantee to only militias.  Furthermore, militias were not the same as the regular army even back then.  The fact that those militias were composed of citizens makes them markedly different.

Apart from the proper scope of the Second Amendment, the rest of yesterday’s arguments addressed whether or not the right to keep and bear arms was fundamental enough to be extended to the states.  Except for his correct historical observation about disarming militias, Feldman pretty much got pummeled for the rest of his positions by the looks of the oral argument transcript from yesterday.

He tried to argue that some rights in our Constitution are more fundamental than others.  Chief Justice Roberts countered Feldman by saying, “I don’t see how you can read Heller and not take away from it the notion that the Second Amendment, whether you want to label it fundamental or not, was extremely important to the framers in their view of what liberty meant.”  Feldman’s response to that was essentially telling Chief Justice Roberts that his interpretation of Heller wrong.  What arrogance.

Feldman then argued that the Second Amendment was created only to give people a right to self-defense using “arms,” which he noted included more than just guns.  Thus, Chicago’s outright ban on handguns was still acceptable so long as the government did not remove all means of protecting one’s self.  Apparently Feldman believes the Second Amendment actually says that we are only entitled to keep baseball bats next to our front door for self-defense if Chicago says so.

Appropriately, Justice Scalia countered, “See, the right to keep and bear arms is right there, it’s right there in the Bill of Rights. Where do you find the right to self-defense?”  Justice Scalia continued, “You — you want us to impose that one on the States but not — not the explicit guarantee of the right to keep and bear arms. That seems very strange.”  Feldman did not have an answer to that one.

My prediction:  The Chicago gun ban is going down, and I would not be surprised if it wasn’t the narrow 5-4 vote that Heller came down to in 2008.  Heller ruled that the citizens of D.C. could possess handguns for self-defense.  The only factual difference between Heller and the case heard yesterday is that Chicago is located in Illinois and not the District of Columbia.  While not having the same substantive discussion of Second Amendment rights that Heller had, the Supreme Court’s opinion in this case will have a much more pervasive and significant effect.

COPYRIGHT 2010 JOHN M. ROGITZ