Otis still doesn't have a gun

At first there seemed to be little reason to comment on McDonald v. Chicago, since just about every pro and anti blog in the sphere already has, with each putting a particular spin to it but most missing the mark to some degree or another.

Contrary to popular opinion, the court’s decision did not overturn state and local handgun prohibitions. The court simply affirmed that local and state governments can't usurp 2A protections. They did not directly overturn the Chicago handgun ban, but rather they sent the case back to a lower court in Chicago with instructions to decide the original case, using this new standard as a guide.

So no, the 5-4 split court did not erase any of the current gun laws, and in fact, just like in the Heller decision, indicated that reasonable regulation remains appropriate.

We can expect problems to come from the fact that both the McDonald and Heller opinions were pointedly non-specific in defining what kind of regulations might be appropriate, or what restriction might pose a constitutional violation.

The question has come up about state's rights and the 10th amendment. When our Constitution was ratified, Bill of Rights protections applied only to the federal government and states were protected from federalism under 10A. Under those circumstances a state would have been mostly free to enact any restriction without worry.

However, 10A was limited under 14A. Due to the 14A clause precluding states from depriving citizens of the United States of "life, liberty or property" without due process, and the clause that reads "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," SCOTUS has, since the end of the American Revolution, broadly applied Bill of Rights persons at all levels of government.

In the Heller opinion, SCOTUS held that "the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense." Heller applied to federal law within the District of Columbia, but in the McDonald ruling the court utilized the same argument under 14A authority, holding that the same protection applied to all citizens in every jurisdiction; federal, state, and local.

In both of those rulings, however, the court leaves the “reasonable regulation” door ajar, and therein lies the rub.

Because of this we likely can’t expect wholesale changes of any laws, but states and cities will be forced to reconsider existing laws and determine if they comply with a very nebulous standard. Constitutional lawyers are likely rubbing their hands together in glee, knowing well that there will be scads of lawsuits, all of which leave the lower courts to decide that which is appropriate and what is not. Regardless of those decision, one of these suits will find its way to the High Court’s door some day in the future. SCOTUS has not seen the end of 2A arguments.

Until a time comes when “reasonable regulation” is defined, the ordinance banning handgun possession by most Chicago citizens will remain on the books, and Otis McDonald, the septuagenarian plaintiff in the case, still lives in one of Chicago’s most violent neighborhoods.

And Otis still doesn’t have a gun.

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