Written by:  Jesus Miguel Palomares

Researched by:  Moorisha Bey-Taylor

Edited by:  Matthew Schroettnig

Managing Editor:  Kirk Strohman

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” – Second Amendment, U.S. Constitution

There are few issues in America today as polarizing as firearms, and our rights to them as citizens. The reason behind this never-ending debate is the enshrined, eternal, and tragically over-punctuated Second Amendment of the Constitution. Many have tried to glean the Founders’ intent behind their brilliant words, but often fail to so much as explain their exhaustive use of commas. A current U.S. Supreme Court case is about to reignite those fires and give you something to discuss the next time you are in an awkward conversation about gun rights with someone at the water cooler.

Last week, the Supreme Court heard oral arguments for McDonald v. Chicago. In McDonald,  Otis McDonald is challenging the city’s sweeping ban on handguns – widely considered the strictest in the nation. Chicago currently prohibits handgun registrations, which creates a de facto handgun ban, as residents cannot legally own unregistered weapons. McDonald is the sister case to D.C. v. Heller (more on this below) and is drawing considerable interest from both sides of the political spectrum. The furor is such that spectators and protesters from all over the country descended on the courthouse and camped outside the building the day before oral arguments began.

A Sawed-Off History of Gun Laws

The 1934 National Firearms Act subjected the weapons trade to federal taxation and registration requirements. The practical effect of this post-Prohibition statute was to bring the firearms trade under federal regulation. Later, the 1968 Gun Control Act prohibited unlicensed interstate weapon transfers and created a list of individuals restricted from gun ownership, such as felons, minors, and known drug addicts. In 1986, the Firearms Owner Protection Act banned ownership of machine guns made after 1986 and provided safe passage for persons carrying guns across state lines for personal use.

Additional laws enacted in the mid-1990’s required federal background checks for gun purchases and banned all assault weapons until 2004 when the ban expired. As broad as these regulations may seem, they did not address the specific issue of individual rights regarding firearm ownership. As previously noted, “in the absence of legislation arises litigation.” Simply put, when lawmakers don’t act to answer a question, people sue each other. Fast-forward to 2007, when the gun control debate left the legislative halls and entered the courtroom to determine whether it is truly an individual right to own a handgun.

Déjà Vu for the Supreme Court

D.C. v. Heller is the 2007 U.S. Supreme Court decision that struck down a sweeping ban on handguns in Washington D.C. The gun ban was the strictest in the nation, prohibiting residents from owning or keeping handguns in their homes. In limiting absolute handgun prohibitions, a 5-4 majority held that the Second Amendment guarantees an individual the right to bear arms.

It is worth noting that Heller was a very limited holding. First, the disputed handgun law was in the nation’s capital, a federal enclave, so Heller does not apply to state laws such as the one at issue in McDonald. Since there are 50 states, the McDonald decision could have significant implications involving individual rights against other state actions. Furthermore, the Court in Heller explicitly stated that its holding was not intended to bring down any “longstanding prohibitions” (i.e. – the existing gun control statutes), ensuring that firearms were still subject to regulation by the political process.

Since the question of Heller’s applicability to state laws remains unanswered, Otis McDonald promptly sued the city of Chicago to clear things up. It is widely believed that the same five Justices in the Heller majority will also rule against Chicago’s handgun ban. Although the Heller ruling only invalidated a federal handgun ban, it still likely created a damning precedent for Chicago’s ban. Don’t start celebrating or denouncing just yet, however, since true victory lies within how the majority formulates its holding.

The Supreme Court: Handguns or No Handguns?

The Bill of Rights, including the Second Amendment, was initially intended to provide state and individual protections from federal government actions. Today, most of the Bill of Rights protections have been “incorporated” via Supreme Court rulings, and so apply to state actions as well. A right is “incorporated” when the Court decides that it is a “fundamental” right: one that is deeply rooted and implied within our nation’s concept of liberty. The Second Amendment has yet to be incorporated, and so its provisions do not bind the states. Thus, the real issue in McDonald – whether the Second Amendment should be incorporated and apply to state actions.

Assuming the Chicago gun law is overturned, the McDonald plaintiffs argue that the Court should incorporate the Second Amendment to apply to state actions. To achieve this, Mr. McDonald cites both the Privileges and Immunities Clause and the Due Process Clause, found in the Fourteenth Amendment. The Privileges and Immunities argument faces longstanding and unfavorable, albeit contentious, precedent in the Slaughterhouse Cases. Slaughterhouse held that the Privileges and Immunities Clause does not apply to state actions, so the Court would have to overturn a 137 year-old case if it adopts McDonald’s first argument. This result would be somewhat monumental.

There is, however, a fear among some gun rights supporters that overturning Slaughterhouse would also open the door for guaranteeing other less-liked issues as individual rights, such as gay marriage and abortion. This has some gun supporters divided as to whether winning this case is worth the potential costs. Conversely, the Due Process Clause holds more favorable precedent because it is the vehicle most often used to incorporate the Bill of Rights over state actions.

Leave the Gun, Take the Regulation

Regarding the Due Process argument, lawyers for the city argue against incorporating the Second Amendment by citing three valid, though somewhat outdated, cases dictating that the Second Amendment applies only to the federal government. Chicago’s lawyers then took a firmer stance against McDonald’s Privileges and Immunities argument. Their reasoning is that any absolute liberty interest regarding firearms that may be protected is already protected, since the city ban only forbids handguns but allows other weapons in homes, such as shotguns.

Should the Chicago ban fall, gun control advocates still hope the Court will be explicit with what it initially implied in Heller: that a pro-gun rights decision should not be construed to say that courts must heavily scrutinize all gun regulations that pass through the legislative system. The policy effect here would be to force judicial recognition of the unique risks associated with guns, as compared to the other rights provided by the Constitution. This would likely result in increased judicial deference towards legislation when examining state and local gun regulations

The McDonald decision is not expected until June, but some cities are already taking steps to circumvent the anticipated overruling of the gun ban, such as regulations on ammunition. So whether you love guns, loathe them, or just like to argue with people, it will be in your best interest to stay tuned and see how this case unfolds.