Henigan on the Upcoming McDonald Decision

The Huffington Post published a very illuminating article by Dennis A. Henigan on the future implications of McDonald vs. Chicago based on the Heller decision.

First, it is important to keep in mind the nature and scope of the right that would be applied to states and localities. In the words of Justice Scalia's majority opinion, the Second Amendment guarantees "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." In addition, the Heller right applies only to self-defense in the home, not to carrying guns in public. Although some have expressed concern that a ruling against Chicago would cripple "stop and frisk" and other law enforcement tactics against illegal carrying of guns on the street, nothing in Heller itself would jeopardize those tactics.

Second, the Heller majority went out of its way to make clear that strong gun regulation short of a handgun ban would still be permissible, regardless of the new right to be armed. According to Justice Scalia, the Second Amendment right is not "to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Instead, the Court said, "nothing in our opinion should be taken to cast doubt" on several broad categories of gun laws, which the Court said remain "presumptively lawful." Those categories, which the Court said did "not purport to be exhaustive," include laws imposing conditions on the sale of guns (which could include background checks, licensing, registration, etc.), bans on dangerous and unusual weapons (which could include machine guns and assault weapons), and prohibitions on carrying concealed weapons. Heller's assurance that prohibiting concealed weapons remains "presumptively lawful" further suggests that extending the Heller right to the states would pose no threat to police tactics against illegal guns on the streets.

Of course the pro-gun spin doctors invested lots of energy into their positive interpretation of the Heller "victory."

If Chicago's law is struck down, it will no doubt be hailed by the NRA as a great victory, as was Heller. But the most ardent "gun rights" advocates can barely hide their disappointment with the practical impact of Heller. They likely have more disappointments to come after McDonald.

What's your opinion? Please leave a comment.