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March 10, 2010

To Arm or Disarm Part 2

Farrell Keough

Yesterday we discussed some of the background of the current 2nd Amendment case before the Supreme Court of the United States – McDonald v. City of Chicago.


The McDonald case opens the doors for enforcement of the 2nd Amendment to the states. In short, Chicago (via the power vested in them through the State of Illinois) does not allow handguns – note the line being walked, a person can own a firearm, but the type is very restricted.


Rather than describe these oral arguments as they took place, it may be more efficient to go about this by speaking to the Respondent (the lawyer supporting the Chicago position) first – the Petitioner (the lawyer representing Otis McDonald, et al) generally goes first.


While reading the proceedings, one had to wonder just what James A. Feldman, Esq.’s position actually entailed. The Supreme Court justices gave him both a tremendous amount of time and liberty to describe his position. Once they began to question him, his arguments shifted to many different tracks. As noted by Justice Antonin Scalia: “You are switching horses now.” It was an unfortunate argument if you are one who supports the notion that each of the states can determine its own laws with respect to gun ownership.


Justice Stephen G. Breyer (who dissented in the Heller decision referenced in yesterday’s column) tried very hard to help Mr. Feldman revive the arguments used in that case. As that case was only decided last year, this position of argumentation was both a poor path to follow and fell well short of influencing the justices.


As time went on, the thrust of the justices better defined the argument Mr. Feldman was trying to make. Justice Sonia Sotomayor was able to narrow the focus:


“Mr. Feldman, our selective incorporation doctrine under the Due Process Clause does suggest that there are some rights that were fundamental enough to be incorporated and some that are fundamental, but not fundamental enough to be incorporated. We have drawn a line.


Is it the ordered liberty concept alone in our jurisprudence that you are relying upon, or is it any other articulation of our incorporation doctrine that supports your view?”


If you will remember back, not all of the Bill of Rights are attributed to the states; that, in a nutshell, is the “selective incorporation doctrine.” Justice Breyer had earlier drawn upon this argument asking Mr. Feldman if there should be a chart outlining which of the “Rights” had more authority than others.


Because of Mr. Feldman’s poor discussion, it “seemed” he was more interested in allowing the states to outright ban firearms than to allow them to regulate. The justices, sensing this untenable position, tried to press Mr. Feldman by asking very directed questions. Justice Sotomayor summed it up by asking: “Would you be happy if we incorporated it and said reasonable regulation is part of the incorporation? And how do we do that?”


Justice Ruth Bader Ginsburg then noted: “I thought that Heller – Heller allowed for reasonable regulation.” In short, the justices made the case for Mr. Feldman better than he was able to himself. They basically noted that while the ‘Right to be Armed’ would still be required of each state, the regulation thereof was up to the states themselves to develop and enforce.


In essence, this would keep the Slaughter-House Cases of 1873 in force – this concept of stare decisis, (“to stand by that which is decided) is a common practice and virtual mainstay of the Supreme Court. One will remember the president berating the Supreme Court during his State of The Union speech for overturning a longstanding rule that corporations cannot donate to political campaigns (McConnell v. Federal Election Commission). It is rare for the Supreme Court to overturn a previous ruling, but even more rare for a sitting president to criticize them not only in public, but to their faces.


Tomorrow we will discuss the Petitioner’s (the lawyer representing Otis McDonald, et al) arguments and determine what the best outcome might be in this case.


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