The decision in McDonald should once and for all determine whether the Second Amendment applies equally to citizens in all states or only to federal jurisdictions such as the District of Columbia.

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On September 30, the Supreme Court announced that it would hear arguments in McDonald v. City of Chicago, a case challenging Chicago’s convoluted restrictions on an individual’s right to keep and bear arms.  The decision in McDonald should once and for all determine whether the Second Amendment applies equally to citizens in all states or only to federal jurisdictions such as the District of Columbia.

McDonald arose out of a challenge to Chicago’s 1983 handgun ban, which makes it both illegal to register a handgun as well as to own one without registering it with the City.   Last year, in District of Columbia v. Heller, the Supreme Court struck down a similar ban in the nation’s capital, but failed to address the question of whether the Second Amendment applies to state and local governments as well. 

Despite common sense, just because a right is contained in the Bill of Rights doesn’t automatically mean that it applies to state and local governments.  For example, the language “Congress shall make no law,” contained in the First Amendment, was widely held to apply just to the federal government, and not to the states prior to the adoption of the Fourteenth Amendment. 

Once the Fourteenth Amendment was adopted in 1868, however, courts had the opportunity to “incorporate” fundamental rights and apply them at all levels of government.  Still today, the Second, Third and Eighth Amendments have not been applied specifically to the states.

The question before the Supreme Court in McDonald is whether the Second Amendment is indeed a fundamental right and should be incorporated through the Fourteenth Amendment’s Due Process Clause.   If the Court answers in the negative, then the only jurisdiction where the dictates of the Second Amendment apply would be in Washington, D.C., a strange irony given the city’s hostility toward individual freedom.  Possession of a handgun could be legal in the nation’s capital, but cross the Potomac River to Maryland or Virginia, and constitutional rights suddenly vanish?

Supreme Court watchers predict that at least five of the nine justices will reject the notion that the Bill of Rights should somehow be Balkanized between the states and the federal government, and the Court will strike down the Chicago ban.  The more practical question facing the justices is how restrictive can gun laws be without running afoul of the Second Amendment?

Writing for the majority in Heller, Justice Antonin Scalia stated, “Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons, and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

While gun purchase and registration were already onerous processes in some states, local governments seized on Scalia’s language in an attempt to make it even more so.  In Washington, D.C., for example, one local reporter attempted to register a firearm and it cost him $833.69, 16 hours during four trips to the police department, two background checks, a five-hour class and a multiple choice exam.

If owning a handgun is indeed a fundamental individual right, as the Supreme Court declared in Heller, then the Court needs to understand that it shouldn’t be impossible to exercise that right.