This is the Day — Oral Argument in McDonald v. Chicago

Today, March 2, 2010, is the day that oral argument in the United States Supreme Court will occur in McDonald v. Chicago, the Chicago gun ban case. At issue is whether the 2nd Amendment applies to the states through the 14th Amendment. The Court can do one of three things. It can say the 2nd Amendment does not apply to the states; it can decide that the 2nd Amendment is incorporated into the 14th Amendment through the due process clause in the 14th Amendment and therefore applies to the states; or it can hold that the privileges or immunities clause of the 14th Amendments prevents the states from infringing upon any citizens 2nd Amendment rights.

In order to do the latter of the three it will have to overrules the 1873 Slaughter House Cases, which is what I hope it does. “Privileges or immunities,” what do those words mean? Think “rights and liberties,” and you’ll have it.

McDonald, the plaintiff in the case, is an elderly Black man who lives in a tough Chicago neighborhood. He has a simple case which he describes this way: “All these gang bangers stealing stuff and beating people up have guns. Why can’t I have a gun? I pay taxes, I’ve worked all my life. These criminals don’t do anything but hurt people.”

Good point. In Chicago it is illegal for an upstanding citizen like Mr. McDonald to own a hand gun, even in his own home. Today the Supreme Court hears oral argument in the case that seeks to “send this law into the trash heap of history where it belongs,” says Alan Gura, Mr. McDonald’s lawyer who will argue the case today.

Here is Alan Gura speaking with Glenn Beck last October 9, 2009, the day the Supremes agreed to hear the case:

UPDATE 12:17 PM MTN: Oral arguments are now over and this much is pretty clear: The Court will most likely incorporate the Second Amendment through the 14th Amendment, but it will be by the due process clause NOT by the privileges or immunities clause. The scope of the rights guaranteed by the Second Amendment will remain limited to Heller for now, to be fleshed out in future cases. These are predictions, and predictions are always subject to error, especially about the future.

UPDATE No. 2: Complete transcript of oral arguments is here.

UPDATE No. 3: Some links:

First News Report on McDonald Argument

The Incorporation Doctrine

Second Amendment Extension Likely

Michael Lotus offers praise for Alan Gura: “The P&I argument in McDonald was a stroke of genius. It made incorporating 2nd Amendment rights via Due Process — something that just a few years ago would have seemed fanciful — look like the sensible, cautious, middle-of-the-road approach.”

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