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For those of us who are passionate about the Second Amendment, Tuesday, March 2nd, 2010, is the day we\’ve been waiting for since June 27th, 2008.   For years, the Second Amendment has been the forgotten and neglected step child of the Bill of Rights, until that day when the Supreme Court declared that, just like every other right detailed in the Bill of Rights, the Second Amendment referred to individuals, not the military.  And while, Heller vs DC alone was a great victory for the Second Amendment and US Citizens, it also had one noticeable shortcoming, which may very well have been intentional.  As I, and others, observed at the time…

My one major disagreement with the decision, and part of the focus of Breyer’s dissent, is that the majority doesn’t really indicate what degree of regulation states can use on the use of firearms. It would be nice to have some sort of guideline or I fear that we’ll be right back in this same spot in the future.

Turns out that that was a rather prophetic statement, as indeed we are right back where we were.  We have no idea what constitutes reasonable regulation and local governments have claimed the ruling didn\’t apply.  So once again, we\’re back to a similar question….does the Second Amendment, like every other right detailed in the Bill of Rights, apply to state and local governments via the 14th Amendment?  We\’re about to get our answer in McDonald vs Chicago….whose oral arguments start today….actually by the time most of you read this, they will have already started.

So what\’s going to happen?  Well, it seems incredibly likely that the court will rule that incorporation applies to the Second Amendment, as I noted five months ago…

Already the Brady campaign is openly accepting that the Second Amendment is likely to be incorporated.  Instead, the contention seems to be falling along the same lines as Heller did.  Both sides are conceding the fundamental question and are instead debating the details, basically what consists of reasonable regulations.

Essentially this case will take the two extremes of the debate out of the equation.  Outright bans and unrestricted ownership/possession will be out.  Even Scalia in Heller noted that while outright bans were certainly unlawful, reasonable regulation had to be allowed.  That same standard will likely apply.  It will come down to the question of what regulation is reasonable.  Essentially what is the Second Amendment equivalent of shouting “Fire!” in a crowded theatre?

I don\’t see anything that would significantly change any of that.  Heller pretty adamantly declared that outright bans were verboten, but then again, even Scalia conceded some regulation was okay.

It\’s also quite possible, that the US Supreme Court will maintain an extremely focused view of this case, and only address the incorporation issue, and leave the definition of \”reasonable regulation\” completely untouched.  In fact, I increasingly believe that will be the case.  Throughout it\’s history the US Supreme Court has abhorred the idea of sweeping changes and landmark decisions, preferring an incremental approach to interpreting the law.  That\’s not together an unwise approach to things…in fact it\’s the approach Republicans are advocating right now in relation to health care reform.

So arguments begin on Tuesday, and SCOTUS has already indicated they will not release the audio of the arguments, only written transcript at the end of the day, so look for that.  And expect a very narrow ruling on this issue, that likely will not define reasonable regulation, but instead will leave that for a future case, just as Heller did.