Lund Comments on Chicago Gun Law Case

If the Supreme Court rules in favor of the plaintiff in McDonald v. Chicago, the ruling will open doors to additional questions over the scope of state and local governments to regulate gun laws, says Professor Nelson Lund, adding that additional effects of the ruling could be far reaching.

The case was filed on behalf of a Chicago man who wishes to carry a handgun for protection but is prevented from doing so by the city's gun ban. The Court's ruling on the March 2 arguments is expected to clarify the question of whether the constitutional right to bear arms extends to all cities and towns within the U.S.

Commenting in the Illinois Statehouse News, Lund pointed out that the effect of the ruling could be markedly different, depending upon whether the Court elects to apply the Second Amendment through the "due process" clause of the Fourteenth Amendment or by incorporating the Second Amendment against states through the "privileges and immunities" clause of the Fourteenth Amendment.

If the court applies the "due process" clause, then only gun control will be affected, says Lund. If, however, the court sees an opportunity to overrule an 1873 case and start over with the "privileges and immunities" clause, it could lead to rights other than those in the Bill of Rights.

"The lawyer in this case wants them to overrule Slaughter-House because he wants this to be a first step toward recognizing a whole lot of other rights besides guns that would be guaranteed against interference from state and local governments," Lund said. "I think the ones that they're most likely to recognize in some later case would be economic rights. It could result in striking down a lot of state regulation that regulates business and so on. That would be a very, very big deal if a court would do that."

Chicago gun case to be argued before U.S. Supreme Court, Illinois Statehouse News, March 1, 2010. By Seth McLaughlin. 

"The U.S. Supreme Court, for the first time in history, ruled in 2008 that a handgun ban was unconstitutional and found that the Second Amendment entitles people to keep handguns at home for self-protection.

"But the landmark decision in that case, Heller v. The District of Columbia, applied only to the federal government and federal enclaves such as the District of Columbia, leaving unanswered major questions about whether state and local governments must honor the rights of citizens to keep and bear arms. 

"The U.S. Supreme Court is scheduled to hear oral arguments Tuesday in a similar case, McDonald vs. Chicago, that is expected to clarify that unanswered question: Does the constitutional right of individuals to keep and bear arms extend to every city and town in the nation?

"The ruling's impact will send shock waves across the country as local communities wrestle with whether banning handguns is a smart way to reduce violent crime, murders and what some see as related community ills. It also could yield a big victory for Second Amendment advocates who feel the Court has let this question linger for far too long."

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