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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 -- 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 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 He can be reached at and can be followed on Twitter as declanm. You can bookmark Declan's Taking Liberties site here, or subscribe to the RSS feed.
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