By Deborah O'Malley
This morning, the Supreme Court will hear oral argument in McDonald v. Chicago, a landmark case addressing whether states can deny the rights of their citizens to keep and bear arms. This question was left open by the Supreme Court’s groundbreaking yet common sense decision in Heller v. District of Columbia, in which the Court concluded, yes, the Second Amendment does actually protect an individual right to keep and bear arms. The successful lawyer for Heller, Alan Gura, will be the lead counsel in McDonald as well.
Inevitably, all eyes will be focused on the Court’s newest justice, Sonia Sotomayor, who received criticism during her confirmation hearings for her previous treatment of the Second Amendment as a judge on the Second Circuit. In Maloney v. Cuomo, Sotomayor ruled that Second Amendment rights do not apply to the states, and that the Second Amendment does not even implicate a fundamental right—and she reached this decision even after the Supreme Court recognized an individual right to bear arms in Heller. After a brief hat-tip of recognition to Heller, Sotomayor based her decision on outdated precedent applying a different provision of the Constitution—so outdated in fact that the line of cases did not even recognize that the states were bound to respect the First Amendment, let alone the Second.
Additionally, prior to the Heller ruling, she had joined an unpublished opinion flatly stating that the right to possess a gun is “clearly not a fundamental right.” This and her decision in Maloney have led many to worry about her fidelity to the Second Amendment. During her confirmation hearings, she defended her ruling in Maloney by claiming she was simply following precedent. However, especially now that she sits on the High Court, she is no longer bound by a decision that virtually everyone concedes is inconsistent with subsequent Supreme Court case law.
This case will have huge implications on one of the few enumerated rights in our Constitution. If the Court does not recognize that the individual right to bear arms is incorporated against the states, this would permit states to completely ban gun possession. This possibility only serves to highlight the importance of the Supreme Court in American life. It is inevitable that there will be at least one or two vacancies giving way to one or two new justices sitting on the Court even yet this year. These justices are given authority over the protection of our most fundamental rights, including the basic right of self-defense that is enshrined in our Constitution.