Thoughts on McDonald v. Chicago

I have been reading and thinking about what the McDonald v. Chicago case would mean to this country and particularly to my State, Illinois.

First let's look at what the Heller decision states as the opinion of the U. S. Supreme Court.  In the definition of the 2nd Amendment, Justice Scalia wrote:

Cite as: 554 U. S. ____ (2008) 19
Opinion of the Court
c. Meaning of the Operative Clause. Putting all of
these textual elements together, we find that they guarantee
the individual right to possess and carry weapons in
case of confrontation. This meaning is strongly confirmed
by the historical background of the Second Amendment.
We look to this because it has always been widely understood
that the Second Amendment, like the First and
Fourth Amendments, codified a pre-existing right. The
very text of the Second Amendment implicitly recognizes
the pre-existence of the right and declares only that it
“shall not be infringed.” As we said in United States v.
Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right
granted by the Constitution. Neither is it in any manner
dependent upon that instrument for its existence. The
Second amendment declares that it shall not be infringed
. . . .”

This is the first time the U.S. Supremem Court has visited and given an opinion, and therefore a definition, of the meaning of the 2nd Amendment.  The court clearly states the Amendment protects an idividual right to posses and carry arms for the purpose of self protection and protection of others.  The court will no doubt agree that reasonable restriction is allowed.  I can't imagine any rational person would see restricting the right to carry a firearm in a prison or jail as excessive restriction.

Would the court hold that the total ban on the carrying of arms in public is reasonable?  I am inclined to believe they would not.  Just as they did not hold a total ban on a functional firearm reasonable in the Heller case:

In sum, we hold that the District’s ban on handgun
possession in the home violates the Second Amendment,
as does its prohibition against rendering any lawful firearm
in the home operable for the purpose of immediate
self-defense. Assuming that Heller is not disqualified
from the exercise of Second Amendment rights, the District
must permit him to register his handgun and must
issue him a license to carry it in the home. -D.C.v. Heller

If the court holds that the 2nd Amendment is incorporated as against the States the previous opinion in Heller would apply.  This would not allow the States to restrict the carry of arms by the people beyond what would be held as reasonable.  Now what is reasonable would of course be another question likely to come before the courts.  Many States with carry laws prohibit the carry of arms in establishments that sell intoxicating beverages, court rooms, places of religious worship, sports arenas, and places of public debate by government bodies.

I can understand those restrictions for the most part.  There are obvious reasons to restrict carry at court proceedings and government meetings where people would likely have very strong opinions and perhaps strong emotional reaction.

I suspect the method used to carry would come into question as well.  Some States currently recognize a right to carry openly while restricting the carry of arms that are concealed to those with a permit.  Some require a permit to carry either way and some recognize both methods of carry.

A decision that the 2nd is incorporated as against the States would not support a cart blanch right to  keep and carry arms anywhere in any manner.  Those who are prohibited from possessing arms because of criminal action have been denied that right through due process and would not regain it because of a decision to incorporate the 2nd Amendment.  I feel the courts would probably hold requiring a permit issued by the State to be reasonable.

I think the incorporation of the 2nd would, in effect, be a national right to carry.

Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. -D.C. v. Heller

I don't think the States would be allowed total prohibition of carrying arms.  The opinion clearly states the protection of the right to not only possess, but also to carry arms for protection.

The finding of the U.S. Supreme Court is only a affirmation of the natural instinct to defend yourself and family from harm.  This is not a privilege given, but a right reinforced by our Constitution.  The court said that in no uncertain terms in Cruikshank.

“[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed . . . .” -Cruikshank, 92 U. S. 542, 553 (1876)

A decision in McDonald v. Chicago to incorporate the 2nd as against the States will come very welcome to freedom loving Americans and would certainly be smiled upon by the founders of this United States of America.

The transcript of the oral arguments can be found here.