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Well here we are again, trying to determine if the bastard stepchild of the Bill of Rights will finally get the respect our Founding Fathers gave it.  Finally the Supreme Court handed down their ruling on Heller – Part II (aka McDonald vs Chicago).  It\’s not quite the ruling I hoped for but it is the ruling I expected:

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.

My biggest issue with Heller was that while it declared the Second Amendment established an individual right to firearms, it also specified that some reasonable regulation was okay but did not specify what reasonable was.  McDonald vs Chicago took basically the same approach, it incorporated the right but left the degree of regulation fairly open-ended.

First of all, the right to keep and bear arms is described as a fundamental right by the majority, which invokes the idea that strict scrutiny should be applied to any legal regulation of that right.  On the other hand the court specified that this ruling should not be interpreted as ending state\’s \”experimentation with reasonable firearms regulations.\”  It\’s far from clear which standard will be applied by the lower courts….in fact in his dissenting opinion, Justice Steven declares :

Today’s decision invites an avalanche of litigation that could mire the federal courts in fine-grained determi nations about which state and local regulations comport with the Heller right….under a standard of review we have not even established.

He\’s right on both points.  This will result in an avalanche of legal challenges to local and state regulations.  And nobody has defined what standard should be applied, or even given a vague outline of what is likely to pass scrutiny.  Although the second half of this analysis actually does a fairly good job of divining how various types of regulations are likely to be interpreted.

There was also something in this decision for the legal nerds out there.  While Alito found the Second Amendment was incorporated via the Due Process clause, which was the basis for the majority opinion.  Justice Thomas also declared that Privileges and Immunities Clause applied, which is, to put it bluntly, astonishing as it overturns roughly 140 years of legal opinion, when the Slaughter-House cases smothered the Fourteenth Amendment in it\’s infancy.  It also puts the court on the road to an originalist reading of the Bill of Rights.  The fact that Thomas\’s opinion on the Privileges and Immunities Clause went unchallenged will set legal scholars into near orgasmic delight at the possibilities for the future.

In the meantime we can prepare ourselves for a almost endless stream of lawsuits as virtually ever gun-control law and firearm regulation in the country is challenged.  Far from setting the matter straight, McDonald has simply opened the flood gates for years of deliberation in the lower courts until we\’re back here for a very loose definition of what legal standard should be applied.

Cya again in a few years.

[Crossposted at True North]