On Tuesday, the Supreme Court heard oral arguments on McDonald v. Chicago, the challenge to Chicago's gun law. The media has reported extensively on the oral arguments and I have been reading the analysis of the arguments and the likely outcome. The general consensus is that the ruling in Heller is going to be applied nationally and Chicago's ban on handguns is going to be struck down. From the questions of the justices and their comments, there is no doubt that the court is leaning in that direction. But from a legal standpoint, the question is what legal basis will the court rely on to apply the Second Amendment to the states? The National Rifle Association favors the application of the 14th Amendment, the Due Process Clause, as the way to apply the Second Amendment to the states. The 14th Amendment provides that "no state shall deprive any person of life, liberty or property without due process of law." It's the principle by which the Supreme Court has previously found that a woman has a right to abortion or struck down state laws that did not allow gay sex or banned interracial marriage. The response from the justices suggests that this is the approach that is most likely to be adopted. The attorney representing McDonald, Alan Gura, who also represented Heller in the earlier case, argued for another part of the 14th Amendment, the privileges and immunities clause. This provision forbids any state from making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States. This is really an untested argument and Gura received some serious questioning from the justices when he made the argument. Justice Scalia even went so far as to ask Gura why he was asking the court to override 140 years of precedent unless Gura was trying to get a job teaching for a law school.
A decision is expected by the end of June. However, all signs are pointing to a big victory for gun advocates. But the victory may not be as big as advocates had hoped. The justices signaled that they will ok reasonable restrictions and that this ruling will only apply to keeping a gun in the house.
For more information about the Chicago criminal defense attorneys at Legal Defenders, P.C., visit us at www.thelegaldefenders.com or call us anytime at 1-800-228-7295.