Kachalsky Advances to the Second Circuit

The opening brief has been filed at the U.S. Court of Appeals in the case of Kachalsky v. Cacace. The appeal challenges the constitutionality of New York’s discretionary handgun-licensing scheme. Currently, the state requires “proper cause” for the issuance of a license to carry a handgun, creating a prior restraint on the fundamental right to bear arms under the Second Amendment and violating equal protection under the 14th Amendment.

Beyond Chicago and Incorporation

And the Second Amendment has come back to California … again … and to the rest of the several states as well.

Today’s U.S. Supreme Court ruling in McDonald v. Chicago wasn’t the historic victory for civil rights that it could have and perhaps should have been, but it was a victory nonetheless. The court failed to breathe new life into the 14th Amendment’s intended protection for the “privileges or immunities” of American citizenship, but it still found that the Second Amendment applied to state and local governments, restoring the right to arms to its proper place in the pantheon of American civil rights. That is cause enough to celebrate for many reasons.

So what happens next?

Even after Chicago’s handgun ban is dismantled, many details about the nature and scope of the right to arms will still have to be defined. Many gun-control laws will be challenged. Some will pass constitutional muster, and some will not.

Legal challenges that have been on hold here in California can now proceed. The state’s concealed-carry licensing system and certified-handgun roster are clearly discriminatory and violate equal protection under the law. These are the low-hanging fruit. The optimists at the Calguns Foundation expect these to fall within two years.

Meanwhile, the usual batch of gun-control legislation has been moving forward, despite the fact that some form of incorporation has been widely expected since the ruling in D.C. v. Heller two years ago. California legislators and officials are either too ignorant or too disingenuous to avoid the oncoming train of constitutional law.

Elsewhere, some good progress has been made during the last year. Iowa joined the ranks of right-to-carry states, while Arizona became the third state to allow concealed carry without a license or permit. Federal regulations prohibiting firearms in national parks have also been lifted.

Why is this all so damned important? That I will explain in a future post.

Business as Usual at the Supreme Court?

So oral arguments in McDonald v. Chicago were made before the U.S. Supreme Court yesterday. While the court is widely expected to rule that the Second Amendment does apply to state and local governments, attorney Alan Gura arguing for the plaintiff received a somewhat hostile reception as he made the case for reviving the original intent of the 14th Amendment’s “privileges or immunities” clause, which had been mostly nullified by a previous ruling in A.D. 1873.

This seemed odd, since the High Court’s dicta in D.C. v. Heller appeared to invite a new look at this very issue. The more cynical observers were quick to suggest that the whole thing might have been a setup. Perhaps, they argued, the “conservative” members of the court wanted the issue before them specifically to kill “privileges or immunities” for another century or two.

Why? Because a fully realized 14th Amendment would revolutionize the civil-rights movement. That the Bill of Rights applies in all its glory to the states as well as to the federal government could no longer be denied. Minority groups still fighting for their share of American liberty would also have an easier time of it.

On the other hand, one well-educated correspondent of mine pointed out that the exchange resembled an academic thesis defense. The faculty may savage the student, but if his arguments are sound, his diploma will be secured. Viewed from this perspective, the proceedings can look much more promising for a reading of the 14th Amendment that is finally right and proper.

In any case, it looked like business as usual at the Supreme Court, but we probably won’t know for sure until June.

Supreme Court to Hear Incorporation Case

The U.S. Supreme Court will hear McDonald v. Chicago to decide if the Second Amendment is incorporated against the states via the 14th Amendment. The case challenges Chicago’s ban on handguns, which is very similar to the District of Columbia’s ban that was struck down as unconstitutional last year. This case also bears watching for its approach to incorporation, which could finally put an end to this long bit of legalistic fiction.

Meanwhile, all pending right-to-arms litigation in California is on hold.

The Second Amendment Comes to California

Today, the U.S. Court of Appeals for the Ninth Circuit ruled that “the Fourteenth Amendment [to the U.S. Constitution] incorporates the Second Amendment and applies it to the states and local governments.” While 14th Amendment incorporation is a profanely legalistic concept, the way has now been opened to challenge unconstitutional gun-control statutes and regulations in California and beyond. The case in question was Nordyke v. King.

In a clever bit of jurisprudence, the court ruled against the plaintiffs (gun-show organizers) while settling the incorporation matter. Alameda County was the “winner,” so it cannot appeal the decision. The right to arms is now the law of the land, at least for much of the western United States.

This is wonderful news for the civil-rights movement, but the fight is really only just beginning. Prepare for an onslaught of litigation over the next few years.