Supreme Court to look at Chicago gun ban

posted at 12:15 pm on September 30, 2009 by Ed Morrissey

The Supreme Court has decided to tackle another local gun ban, this time in Chicago, where a lower court upheld an ordinance outlawing handguns.  The decision indicates that the Roberts Court wants to clarify further its decision in Heller, which struck down a similar ban in Washington DC as unconstitutional.  The McDonald case gives the court an entree to broadening its incorporation doctrine for the Second Amendment (via The Right Scoop):

The Supreme Court agreed Wednesday to decide whether strict local and state gun control laws violate the Second Amendment, ensuring another high-profile battle over the rights of gun owners.

The court said it will review a lower court ruling that upheld a handgun ban in Chicago. Gun rights supporters challenged gun laws in Chicago and some suburbs immediately following the high court’s decision in June 2008 that struck down a handgun ban in the District of Columbia, a federal enclave.

The new case tests whether last year’s ruling applies as well to local and state laws.

The doctrine of “incorporation” holds that the rights enumerated to individuals in the Constitution have to be respected by states and localities as well.  This may seem rather obvious, and usually gets applied to questions of free speech, religious practice, and so on.  However, courts have vacillated on incorporation, and even Heller didn’t directly rule on it, as DC is a federal jurisdiction.

At the time, Justice Antonin Scalia hinted that the court would address incorporation more directly. McDonald gives them that opportunity.  If they rule that the states must respect the US Constitution as a baseline of protections for American citizens in all states, then gun bans such as those in McDonald cannot stand.  Second Amendment advocates have long argued this, and they may soon have the victory they seek.

That could have other implications as well. Tom King noted that liberals might like that kind of ruling in order to force all 50 states to use grand jury proceedings for indictments in order to comply with the Fifth Amendment.  If so, defense attorneys could already be preparing habeas corpus motions by the bucketload in the roughly half of the states that don’t require it.

The court itself will be interesting to watch on this question.  Its newest member, Justice Sonia Sotomayor, ruled on another case in the same manner as the appellate court in McDonald.  She replaced David Souter, who would likely have voted similarly, so the balance of the court has not shifted to the left since Heller.  It may give the current court an interesting opportunity to rebuke one of their colleagues, albeit indirectly.  Just the fact that they have decided to hear McDonald indicates a desire to settle the incorporation and Second Amendment issues forcefully, and we’ll see if they follow through on that promise.

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