Malcolm in Philadelphia Inquirer: Wrestling With Gun Rights

"If, as the justices concluded, the Second Amendment 'elevates above all other interests the right of law abiding responsible citizens to use arms in defense of hearth and home,' Otis McDonald should win his case," says Professor Joyce Lee Malcolm, commenting on McDonald v. the City of Chicago in an op-ed appearing in The Philadelphia Inquirer on May 23.

Chicago's handgun ban, almost  identical to the DC gun ban recently overturned in District of Columbia v. Heller, will be reviewed in McDonald v. the City of Chicago. In the forthcoming Supreme Court case, justices will decide whether to incorporate the Second Amendment so that cities and states are bound by its protection. 

"Is the right to keep a gun for self-defense a fundamental right deserving of incorporation?" asks Malcolm. "Self-defense has always been seen as the first law of nature, so basic that legal experts believed no government could take it away. English common law recognized three great and primary rights: personal security, personal liberty, private property. The Declaration of Independence regarded as unalienable the rights to 'Life, Liberty and the Pursuit of Happiness.' Life first," Malcolm points out.

Wrestling with gun rights, The Philadelphia Inquirer, May 23, 2010. By Joyce Lee Malcolm.

"There is understandable concern that if the Supreme Court decides to incorporate the Second Amendment, it will mean the end of all state and city regulation of firearms. That is not so. For example, the Eighth Amendment protection against cruel and unusual punishment was incorporated more than 40 years ago, but states still differ, sometimes markedly, on what they regard as 'cruel and unusual.'

"And while the justices warned in the Heller opinion that 'the enshrinement of constitutional rights necessarily takes certain policy choices off the table,' they explained that reasonable regulations such as prohibitions against possession of firearms by felons and the mentally ill, or laws forbidding carrying firearms in sensitive places, were permissible. What is not permissible is depriving law-abiding individuals of the means to protect themselves."