McDonald v. Chicago before the U.S. Supreme Court

An intense morning of oral arguments at the United States Supreme Court on Tuesday highlighted persistent divisions on the interpretation of the Second Amendment.

Lawyers in the case of McDonald v. Chicago, No. 08-1521 spent over an hour staking out their positions on whether or not the Supreme Court should incorporate, or apply to states and local governments,  gun rights under the due process clause of the Constitution.

The legal case stems from Chicago, Illinois’ city ordinance ban of unregistered handguns; most handguns cannot be registered.

In a Feb. 25th posting on the Supreme Court of the United States (SCOTUS) blog, the background of the city’s 30-year old gun restrictions is explained.

“Rifles and some shotguns are allowed in the city, if registered,” Lyle Denniston, a writer for the court’s blog noted. “Oak Park, a city of about 50,000 people bordering the west side of Chicago, has gone even further: It makes it a crime for anyone to have within the city limits any gun small enough to be concealed on the person.”

During the hour long oral arguments, lawyers for four Chicago-area residents, two gun rights groups and the National Rifle Association were routinely questioned by the Justices.

“Look at statistics,” Justice Breyer said. “You know, one side says a million people killed by guns. Chicago says that their — their gun law has saved hundreds, including — and they have statistics — including lots of women in domestic cases.”

Alternatively, the Justice said, gun rights advocates dispute the numbers.

“Without incorporation, it’s decided by State legislatures;” Breyer argued. “With, it’s decided by Federal judges.”

When asked how cases that rely upon statistical evidence for the purposes of restricting or banning gun access should be decided, Attorney Alan Gura, arguing for the gun advocates, said it was fruitless to ask justices to rule based on numbers alone.

“We decide that by looking, not to which side has the better statistics, but rather to what the framers said in the Constitution,” Gura pleaded, “because that policy choice was made for us in the Constitution.”

Justice Breyer continued his questioning by asking Gura if a city should not ban guns even if the laws are saving hundreds of lives.

“The city cannot ban guns that are within the common use as protected by the right to arms,” Gura responded.

Justice Scalia argued that court cases involving constitutional rights should not be adjudicated on the basis of statistics alone.

“If there is a constitutional right, we find what the minimum constitutional right is and everything above that is up to the States,” Scalia said.

Attorney James A. Feldman, litigating for the cities of Chicago and Oak Park, said the Second Amendment should not be applied to state and local governments and that firearms are designed to injure and kill, unlike other rights and provisions of the Bill of Rights.

“The Second Amendment should not be incorporated and applied to the States because the right it protects is not implicit in the concept of ordered liberty,” Feldman stated. “States and local governments have been the primary locus of firearms regulation in this country for the last 220 years.”

Discussion continued about the concepts of ordered liberty, due process and self-defense.

Other Justices — included Sotomayor, Stevens, Kennedy, and Roberts — interjected throughout the hour-long presentation. Only Justice Clarence Thomas refrained from asking any questions.

Read the Court Documents in McDonald, et al., v. Chicago, et al. (08-1521)

Read the Oral Arguments

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