McDonald v. Chicago

It's rather like this:

JUSTICE SCALIA: Is it easier for a runner who has a 90-yard head start to win the 100-yard dash?
MR. GURA: I don't think it's fair to give one runner a 90-yard head start...
JUSTICE SCALIA: I'm not interested if you think it's not fair that one runner gets a 90-yard head start, I just want to know if it's easier for that runner to win the race.
MR. GURA: Well, I suppose so.
JUSTICE SCALIA: Then why are you asking us to start the race over with all the runners starting at the starting line?

Court may arm itself with 1st Amendment as it tackles 2nd
(By David L. Hudson Jr., FirstAmendmentCenter.org, 03.04.10)

A recent Second Amendment case may give the U.S. Supreme Court another opportunity to call upon its arsenal of First Amendment jurisprudence. This week the high court heard oral arguments in McDonald v. City of Chicago, a case that could determine whether the constitutional right to “keep and bear arms” limits state and local governments’ ability to restrict gun ownership.

A major issue in constitutional law is determining what freedoms in the Bill of Rights " which protects individuals from infringements by the federal government " are extended to the states via a process known as selective incorporation. During the 20th century, many constitutional freedoms " including all five freedoms in the First Amendment (religion, speech, press, assembly and petition) " were incorporated into the due-process clause of the 14th Amendment, which provides that no state shall “deprive any person of life, liberty or property without due process of law.” The process of incorporation means that, for purposes of constitutional law, the term “liberty” in the due-process clause encompasses First Amendment and other select freedoms included in the Bill of Rights.

In McDonald, the Court has to determine whether, like the five freedoms of the First Amendment, the Second Amendment right to “keep and bear arms” extends beyond the federal level, thus barring infringements by state and local government officials.

During oral arguments, the attorneys and justices mentioned the First Amendment on at least six occasions. This frequency is not surprising, as the Supreme Court cited the First Amendment repeatedly in its 2008 decision in Heller v. District of Columbia, when the Court ruled that the Second Amendment protected an individual right to keep and bear arms, rather than just a collective right for a militia to bear arms.

In his majority opinion in Heller, Justice Antonin Scalia explained that both the First and Second Amendments include the phrase “right of the people.” He also emphasized that just as the First Amendment does not prohibit all regulations of speech, the Second Amendment need not prohibit all regulations of gun ownership. Scalia also noted that it took more than 130 years for the Supreme Court to develop an extensive First Amendment jurisprudence, explaining that it was not unusual for the Court to take a long time to examine and clarify the contours of a constitutional amendment. Dissenting justices in the Heller case also cited the First Amendment on multiple occasions.

Given the many references to the First Amendment in oral argument, don’t be surprised if the Court frequently cites the First Amendment in its decision in McDonald. If recent history repeats itself, the justices will find the First Amendment and its vast jurisprudence a welcome help in interpreting the Second Amendment.

Federal Judge Upholds DC's Latest Gun Laws
(By ANNIE YOUDERIAN, Courthouse News Service, March 28, 2010)

A federal judge in Washington, D.C., upheld the District of Columbia's latest set of gun regulations, crafted to "cure the constitutional deficits" identified by a landmark Supreme Court decision overturning the district's handgun ban.

The lead plaintiff challenging the restrictions is Dick Anthony Heller, the gun owner whose individual right to keep a gun in his home was restored by the Supreme Court in District of Columbia v. Heller.

Heller and three others argued that the post-Heller regulations still violated their Second Amendment rights and D.C. code. Specifically, they took aim at three provisions: the registration procedures, the assault weapons ban and the prohibition on large capacity ammunition feeding devices.

U.S. District Judge Ricardo M. Urbina said the challenged provisions are both "usual" and "reasonable" under D.C. Code, dismissing as irrelevant the argument that D.C.'s laws are more restrictive than those of some other jurisdictions.

Urbina also pointed out that nothing in Heller guarantees an individual the "unlimited" right to bear arms. The justices stated said the Second Amendment does not "protect those weapons not typically possessed by law-abiding citizens for lawful purposes," and that Heller should not "cast doubt" on longstanding gun regulations, such as laws barring felons or mentally ill people from possessing weapons, or laws banning weapons in sensitive places like schools and government buildings. The Supreme Court also endorsed bans on carrying "dangerous and unusual weapons."

Applying intermediate scrutiny, Judge Urbina said the registration requirements are "substantially related" to the "important government interest" of ensuring public safety. And the bans on assault weapons and ammo-feeding devices fall outside the scope of the Second Amendment, he ruled.

The plaintiffs had argued that requiring a gun owner to pause to reload after firing 10 shots of ammunition rendered the gun "inoperable."

"This argument borders on the absurd," Urbina wrote. Granting summary judgment to the district, the judge deferred to the D.C. Council's findings that such assault weapons and devices fit Heller's definition of "dangerous and unusual."

Heller's attorney, Richard Gardiner, said his clients would appeal.

Quote:

Federal Judge Upholds DC's Latest Gun Laws
(By ANNIE YOUDERIAN, Courthouse News Service, March 28, 2010)

A federal judge in Washington, D.C., upheld the District of Columbia's latest set of gun regulations, crafted to "cure the constitutional deficits" identified by a landmark Supreme Court decision overturning the district's handgun ban.

The lead plaintiff challenging the restrictions is Dick Anthony Heller, the gun owner whose individual right to keep a gun in his home was restored by the Supreme Court in District of Columbia v. Heller.

Heller and three others argued that the post-Heller regulations still violated their Second Amendment rights and D.C. code. Specifically, they took aim at three provisions: the registration procedures, the assault weapons ban and the prohibition on large capacity ammunition feeding devices.

U.S. District Judge Ricardo M. Urbina said the challenged provisions are both "usual" and "reasonable" under D.C. Code, dismissing as irrelevant the argument that D.C.'s laws are more restrictive than those of some other jurisdictions.

Urbina also pointed out that nothing in Heller guarantees an individual the "unlimited" right to bear arms. The justices stated said the Second Amendment does not "protect those weapons not typically possessed by law-abiding citizens for lawful purposes," and that Heller should not "cast doubt" on longstanding gun regulations, such as laws barring felons or mentally ill people from possessing weapons, or laws banning weapons in sensitive places like schools and government buildings. The Supreme Court also endorsed bans on carrying "dangerous and unusual weapons."

Applying intermediate scrutiny, Judge Urbina said the registration requirements are "substantially related" to the "important government interest" of ensuring public safety. And the bans on assault weapons and ammo-feeding devices fall outside the scope of the Second Amendment, he ruled.

The plaintiffs had argued that requiring a gun owner to pause to reload after firing 10 shots of ammunition rendered the gun "inoperable."

"This argument borders on the absurd," Urbina wrote. Granting summary judgment to the district, the judge deferred to the D.C. Council's findings that such assault weapons and devices fit Heller's definition of "dangerous and unusual."

Heller's attorney, Richard Gardiner, said his clients would appeal.

A pdf copy of the opinion can be found at: http://online.wsj.com/public/resources/documents/032610helleropinion.pdf

Wouldn't a decision against the City of Chicago erode
the independent police powers of all American cities and states?

Seems to me (not a legal eagle by a long shot, I hasten to add) that the argument is a subtler one: what is an individual right and what is a right of the state - whether the rights are enumerated or they lie somewhere in those "penumbras and emanations'. That said very tentatively....