The McDonald Gun Case: Here to Serve You

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The second Constitutional bookend corralling the modern American gun control movement is just about in place. The Supreme Court's oral argument Tuesday morning strongly suggests that a majority of the justices intend to extend onto the state and local scene the Second Amendment's individual gun rights. Once such a ruling is in place (bet the house on the last week of June) we'll see a sea change in the way gun ordinances are written, enacted, defended, and judged.

A question by Justice Anthony Kennedy, the Court's precise (but ever-changing) middle, sums up where the Court's mind (and votes) seem to be. Not on whether the Second Amendment should be incorporated onto the state scene (like its cousin amendments before it) but on what such incorporation would look like once it's in place. Here's the exchange:   

JUSTICE KENNEDY: I understood the Chief Justice's question -- maybe I misunderstood it, but my understanding of the question that's important is this. Under incorporation by reference, the States are bound by the rights in all -- with all of the refinements and sophistication with which we interpret them for the Federal Government. It's the same. You don't just apply the core of the right. You apply all of the right as it is elaborated by the cases. Is -- is that same consequence -- does that same consequence follow if we adopt the privileges and immunities interpretation that you are urging upon us?

Even Justice John Paul Stevens, who anchors the Court's liberal wing, seemed to concede the point when he asked this of Solicitor General Paul Clement: 

JUSTICE STEVENS: .... I'm asking you cases involving incorporation of substantive rights, as opposed to procedural rights. The procedural cases come in under the due process language, but the substantive cases comes under the word "liberty," and "liberty" picks up the First Amendment and so forth. And I take it it's the word "liberty" that picks up the Second Amendment. And if it does, why does it have to be precisely the same scope as the Second Amendment?

Chief Justice John Roberts, meanwhile, presaged the future of gun control legislation with this question: "That still allows scope, once you determine that the right is incorporated, for recognizing that the States might have broader interests that the Federal Government doesn't have. But I would suppose that would come up in the application of the right rather than in an effort to determine whether parts of it are incorporated or not."

Add to that Justice Antonin Scalia's genial joviality at the event and you have the makings of at least a 5-4 and perhaps a 6-3 ruling that will undermine many state and local gun laws around the nation. Someone on the radio asked me today how the president or Congress would be able to counteract all this Supreme Court movement in favor of gun rights and against gun control. The answer, dear friends, is simple: it ain't gonna be easy.  

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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