By Larry Keane, NSSF Senior VP & General Counsel
Today’s oral arguments before the Supreme Court in McDonald v. City of Chicago seemed to be more focused on how and to what extent the Second Amendment should be applied to the states, rather than whether it should be incorporated.
Lawyers arguing for incorporation, Alan Gura on behalf of the petitioners McDonald, et. al. and former U.S. Solicitor General Paul Clement for the National Rifle Association, took two separate and distinct paths in their arguments. Gura argued that the High Court should reverse the 7th Circuit’s decision on the grounds that the Second Amendment is an incorporated right through the Fourteenth Amendment’s “privileges and immunities” clause, while Clement focused his argument on the Fourteenth Amendment’s “due process” clause.
It seems that Paul Clement had the more persuasive argument.
In asking whether the Second Amendment should apply to the states, Justice Breyer discussed the role of legislators making policy decisions about firearm regulations. He said that the choice for these legislators is between “guns and life.”
I found this comment shocking as it implies that guns equal death, completely disregarding the fact that firearms are used three to five times more often in self-defense (thereby saving lives) than in the commission of a crime.
Also of note, the attorney representing the City of Chicago appeared to concede that a state could not ban guns outright as it would take away the right of self-defense.
In responding to the justices’ questions, the city of Chicago was attempting to re-litigate Heller, making the same failed argument that the Second Amendment is tied to state militias.
Justice Scalia, who wrote the Heller decision, was having none of that.
Bottom Line: While the decision will not come down until June, reading the tea leaves, we remain hopeful that the court will apply the Second Amendment to the states through the Fourteenth Amendment’s “due process” clause. The extent to which the court applies the right and what degree of “reasonable” restrictions are allowed remains to be seen.
Here is a link to the complete transcript of the court arguments.