Supreme Court Schedules Major Gun Rights Case

(AP Photo/Judi Bottoni)

The U.S. Supreme Court has set a date to hear the landmark civil liberties case that will determine whether the Second Amendment prohibits state and local governments from enacting stiff anti-gun laws.

Oral arguments in the lawsuit, McDonald v. City of Chicago, will be held on the morning of March 2, 2010. A decision is expected by late June or early July.

It's also worth noting the amicus briefs that have been filed in the last week or so in support of the Second Amendment Foundation and other groups challenging Chicago's handgun restrictions.

There are at least 30 of them -- ably reposted at ChicagoGunCase.com -- plus two unaffiliated ones filed by the NAACP Legal Defense & Education Fund and the Brady Center To Prevent Gun Violence. (The NAACP wants to ensure that any decision won't jeopardize other civil rights, and the Brady folks argue that even if the Second Amendment applies to state gun laws, the justices should adopt a deferential approach that lets nearly all of those laws survive.)

This article isn't long enough to summarize all of those briefs. But the highlights include:

* Thirty-eight state attorneys general believe that the Second Amendment protects an individual right against infringement by state and local governments: "Unless the ruling of the court of appeals below is reversed, millions of Americans will be deprived of their Second Amendment right to keep and bear arms as a result of actions by local governments, such as the ordinances challenged in this case."

* Law enforcement instructors and trainers, in a brief written by David Kopel, highlight original research including what happened after South Carolina re-legalized handgun sales (crime fell) and Chicago enacted a ban (crime rose). Kopel runs the numbers and concludes: "Chicago after the handgun ban is much more dangerous, relative to other large American cities, than was Chicago before the ban."

* Philosophy and sociology professors offer a break from a legalistic argument to stress the right of self-defense. An excerpt: "To the Founders, the right to be armed was an integral part of the right to self-defense, as is illustrated in a 1790 lecture by an original member of this Court, Justice James Wilson. Justice Wilson was a law professor, member of the Constitutional Convention, and the primary author of the Pennsylvania Constitution. He explained the right to use deadly force to repel a homicidal attacker as a natural, inalienable right."

* In what may come as a bit of a surprise, dozens of California and Nevada prosecutors believe the Second Amendment must apply to states, saying "the fundamental rights embodied in the Second Amendment deserve the same protection afforded other fundamental rights." (Note San Francisco, home of the failed-in-court handgun ban, is not one of them.)

Some background: the Second Amendment, of course, says that Americans' right to "keep and bear arms" shall not be infringed. Last year's decision in D.C. v. Heller applied that prohibition only to the federal government and federal enclaves like Washington, D.C., but left open the question of "incorporation" -- that is, what state laws were permissible or not.

As a result, in the wake of Heller, anti-gun court decisions have proliferated. There's the Maryland appeals court that concluded residents enjoy no constitutional gun rights, a similar New Jersey ruling, and another one from Illinois.

If I had to handicap the outcome of this case, there seems to be a reasonable chance that Alan Gura and the McDonald plaintiffs will win. But a technical win may not have much of a practical effect -- as long as lower courts can figure out a way to justify as constitutional local restrictions that differ only slightly from Chicago's. This may not matter in gun-friendly places like Idaho; it certainly matters to citizens of California, Iowa, Maryland, Minnesota, New Jersey and New York, all of whom lack a right to keep and bear arms in their state constitutions.

It looks like the Brady Center came to the same conclusion; its brief seems to assume that the Second Amendment does apply beyond the federal government, and instead argues that courts should adopt a "deferential" standard when evaluating state and local ordinances. Of course, advocates for what may be about to become the nation's newest civil right might say that's the same as having no standard at all.

Update 11:03 p.m. ET: Dave Kopel wrote in to tell me that my two-word summary of South Carolina's experience post-handgun legalization was not as accurate as it could be. Crime rose in the state post-legalization, but it rose less than it did elsewhere. So it rose in absolute terms but fell somewhat in relative terms (albeit not statistically significant relative terms). Here's a longer excerpt from his brief: "Crime was soaring nationally in the late 1960s, but it rose somewhat less in South Carolina in the post-ban years. If handgun ownership by law-abiding citizens were criminogenic, then one would have expected just the opposite result: after handgun sales were relegalized, South Carolina violent crime should have risen sharply, relative to the United States as a whole, since South Carolina was the only state in the period that enacted a law to greatly increase handgun availability."

Update 11:05 p.m. ET: Alert CBSNews.com Reader Matthew C. points out that a New York state law protects the right to keep and bear arms. (Go here and search for "infringed" to find the statute, which basically tracks the text of the Second Amendment.) I replied to Matthew by saying in part: "In the absence of a state constitutional guarantee, any subsequent act of the legislature generally will trump the legislature's earlier enactments (such as the NY statutory text you quoted). If there is a strong state preemption law, NY citizens may be able to be rid of restrictive local ordinances, but that doesn't protect them from what Albany does, and the continued existence of New York City's anti-gun ordinances makes me suspect that no such preemption exists."

---

Declan McCullagh is a correspondent for CBSNews.com. He can be reached at [e-mail] and can be followed on Twitter as declanm. You can bookmark Declan's Taking Liberties site here, or subscribe to the RSS feed.

[hossinator]

Just some statistics for those that say that guns are responsible for too many injuries and deaths (the people using them are responsible but that's another issue) and should be banned because of it.

Total Deaths from guns every year: 30,896
Suicides using firearms: 16,833 (more than half of total deaths)
Injuries (crime and non-intentional): 78,622 with 3,797 due to attempted suicides and 56,626 in an attack.
Rest of stats are officer or citizen justified use of firearms and account for roughly 1000 cases.
These statistics are from the Brady Center. http://www.bradycampaign.org/facts/gunviolence

Okay, now Smoking statistics:
Deaths due to smoking: 440,000
Deaths due to secondhand smoking: 46,000 (est.)
both stats from the American Cancer Society www.Cancer.org

Deaths and injuries due to Automobiles
Total Deaths: 37,261
Deaths of nonmotorists: 5,282
Total Injuries: 2,346,000
Nonmotorist injuries: 130,000
Statistics from National Highway Transportation Safety Admin.
www.nhtsa.org

So, what causes more harm? guns? smokes? or rides?
Maybe "public safety" could best be served some other way...

[abundant-life-ministries]

I sure hope the supreme court does the right thing and keep out of or personal lives. If you are not felon use should have right to carry whatever gun you like.

[P0STING_AWAY]

I sure hope the supreme court does the right thing and keep out of or personal lives. If you are not felon use should have right to carry whatever gun you like.
======================================================================
I could not agree more.
I want to see guns in ALL churches.
I REALLY want to see guns allowed into the offices of all
REPUGLICAN political office holders.

[roghil]

There are .45 ACP revolvers, but they need the cartridges to be placed in "moon" or "half-moon" clips first.

[paramedic70002]

Hello CBS, the picture you have accompanying this article is a sham. While it doesn't rise to the level of the Bush National Guard memo, I must point out that the typical revolver only carries 6 cartridges (those pictured above the firearm), not the 14 pictured, and that the cartridges pictured below the firearm are made for semiautomatic pistols, and are in different calibers (sizes). They would not all work in any one sidearm, but they particularly would not work in the pictured revolver.

[BuzzsawII]

Weak sheep elect their butchers.

[jackburtonsr]

JackW sez: God gives life, gunfire takes it away.

JackB responds: Tell that to these thousands of citizens, with their stories documented in the media for all to see, who saved their lives with guns...

http://www.thearmedcitizen.com/

[JackWeaver]

Well, Jack B, I would say that the media has documented very few instances of US civilian lives being saved through gunfire, as compared with the number documented as having been lost through gunfire.

[blazer037]

Comment to JackW:
Saying that "the media" fails to document more than a "few instances" is about as vague as you can be, which is where an argument usually goes when you lack facts. The post listed a website where the instances are documented, and you can actually check those. You actually say nothing, and back nothing up.

[jackburtonsr]

Barbara sez: Combat style guns have no buniness in the public's paws.

Jack replies: Ignorance can be cured. Mouse here and you'll know more about "combat style guns" in five minutes than Babs has learned in a lifetime...

http://hubpages.com/hub/Assault-Weapons-Evil-Black-Rifles-or-perhaps-not

[imalexdude]

egresor: Conservatives support the constitution, which is the supreme law of the land, and will triumphant state rights every time. There is no inconsistency with this. States have no authority to infringe on our second amendment right to keep and bear arms, period. If you have a problem with freedom Cuba isn't too far away. Have a nice day!

[cooky9]

America was founded and became a free country by the force of arms. you may be against the right to bear arms right now, but when a thief enters your house while your asleep and attacks you family in the middle of the night, and you wake to find them violating you right to be a free man in your own home, you're gonna wish you had a gun to protct yourself. or what if the plan of the elite is to remove our weapons and take over our country by force? if you are not armed you can't protect your rights. we are falling right in to the hands of the very people that are trying to destroy the very freedom given to us by our four fathers and the arms that made it possible. responsible gun owners should not be punished for the actions of a few outlaws. but the liberal's see no other way. guns are a threat to the very existince of the elite, but they are the very back bone to the protection of them as well. FREEDUMB!!!!!!!!! is at the hands of those who choose to follow the sheep. freedom is at the hands of those who believe that our country is still great and are willing to protect it. we are LIONS...... pull your heads out america. we're losing the war against our individual rights to be free. Russia has more freedom than us if we dont act now...........

[JackWeaver]

In 18th-century America, a "well regulated militia" was generally understood to be one that was regulated by law:

"For want of proper Laws in the Southern Governments, their Militia were never well regulated; and since the late Troubles, in which the Old Governments have been unhinged, and new ones not yet firmly established, the people have adopted a mode of thinking and Acting for themselves. It is owing to this, that when a Summons is issued for Militia, those only turn out that please, and they for what time they please, by which means they some times sett off for their homes in a few days after they join the Army. From this State of facts, you will perceive, that I put no great dependance on the Militia from the Southward..." (George Washington to Johathan Trumbull, March 6, 1777)

[astronerd1]

Here are some uses of the term 'well-regulated' from the Oxford English Dictionary:

1709: "If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations."

1714: "The practice of all well-regulated courts of justice in the world."

1812: "The equation of time is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial."

1848: "A remissness for which I am sure every well-regulated person will blame the Mayor."

1862: "It appeared to her well-regulated mind, like a clandestine proceeding."

1894: "The newspaper, a never wanting adjunct to every well-regulated American embryo city."

The term was in common usage long before the Constitution was written. It referred to the property of something being in proper working order. It had nothing to do with government control or government laws.

[alliberty]

JackWeaver That is why in Article one section 8 of the US Constitution the federal gov. had power to call forth the militia which applies to your qoute. Article one also defines congress power to raise and discipline the organized militia, the National Guard; which makes the 2nd Amendment not necessary to raise the National Guard.

The Federalist Papers #29 titled -Concerning the Militia- defines the " character of a well regulated militia" as only having the skill to shot a firearm as good as a full time soldier. The skills to shot a good as a foot soldier can be achieved by practice at a shooting range. The US Army Marksmenship Unit, the best shooters in the military, recruite from winners of civilian shooting compititions. These individuals in the USAMU were already members of the well regulated militia because of their shooting skills not because they had joined the National Guard.

SCOTUS defense of Congress to justify Selective Service is that all able bodied US is a member of the militia that is defined by US CODE 10 section 311 as those consisting of the unorganized militia; seperate from the organized militia, National Guard.