Whatever your thoughts on gun control, news like this gets law geeks and wannabe scholars of constitutional law (such as me) pretty excited.
In short, the Supreme Court has granted certiorari (Fancy Lawyer Talk for “agreed to hear”) to a case which will, one way or another, fill a massive gap in our 2nd Amendment jurisprudence: whether or not the 2nd Amendment applies to states, as well as the federal government.
Last year, the Supreme Court, in District of Columbia v. Heller, ruled on the meaning and scope of the 2nd Amendment for the first time, holding that it protects an individual, rather than collective, right to possess firearms for private, lawful use, including self-defense. However, because a Washington, D.C. law was being challenged, and D.C. is technically governed exclusively by the federal government, the Court only ruled on the 2nd Amendment as it applied against federal law. This makes sense, because the Court could not have incorporated any 2nd Amendment rights against the states without first ruling on the meaning and scope of the rights that it provides.
In Heller, the court essentially held that the 2nd Amendment protects the right of individuals to keep handguns in their homes, for self-defense and other lawful uses. More specifically, Justice Scalia’s majority opinion held that individuals have a right to possess firearms that are “in common use at the time” for lawful purposes, but left open a great deal of wiggle-room for the government to put restrictions on the possession and use of firearms, such as banning guns at sensitive facilities, schools, or banning possession of guns by minors, the mentally ill, or convicted felons.
The upcoming case, known as McDonald v. Chicago, challenges Chicago’s handgun ban, and the ban’s opponents appear to argue that the Heller decision should be applied against state governments, as well.
Originally, the Bill of Rights (the first 10 Amendments to the Constitution, which protect our rights of free speech, freedom of religion, the right to trial by jury, etc.) only applied against the federal government. However, after the passage of the 14th Amendment, beginning in earnest in the early 20th century, the Supreme Court began to apply those protections against state governments as well (a process known as “incorporation”), relying on the 14th Amendment’s Due Process clause as its rationale for doing so.
Considering that the legal meaning of the 2nd Amendment’s “right to bear arms” was settled a little more than a year ago, after around 150 years of scholarly debate, the pace at which the Court is moving in filling in the centuries-old gaps in the law is quite impressive. Perhaps they feel as if they have some catching up to do? Or, as a more cynical person might argue, perhaps the conservative wing of the Court is simply granting cert to these cases so they can decide them before one of them retires and is replaced by an Obama appointee.
Whatever the result of this case, it is certainly going to ignite a storm of scholarly debate over the meaning of the 2nd Amendment, and its relevance in modern times.
According to recent LegalMatch case data, the majority of prospective clients who sought an attorney for a criminal case related to gun possession had no prior arrests. While it is impossible to know the exact circumstances of each case from this data, it is possible that many of the crimes which these people are charged with would cease to be illegal if the 2nd Amendment is incorporated. As for those who have prior convictions, they’re most likely out of luck, given the leeway that the Court has already indicated it is willing to give the federal government, when it comes to keeping guns out of the hands of convicted felons.