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March 2, 2010

Five Could Be The Magic Number


A Los Angeles Times story on McDonald et al. v. City of Chicago et al. reports "all signs Tuesday were that five [U.S. Supreme Court] justices saw the right to 'bear arms' as national in scope and not limited to laws passed in Washington."

Five is a familiar number for those who remember the 2008 Heller case, in which the justices voted 5-4 to reaffirm the Second Amendment as an "individual" right to keep and bear arms as opposed to a "collective" right pertaining to militias only. That ruling, however, applied only to federal government jurisdictions, such as the District of Columbia. An identical vote in the McDonald case would make the Second Amendment truly a national right, as it should be, by incorporating, or applying, the Second Amendment against state regulation. The court's decision is expected in several months.

NSSF President Steve Sanetti and Senior Vice President and General Counsel Larry Keane were at the Supreme Court today to hear the oral arguments in this landmark case. See Keane's blog post for an analysis of the proceedings, which includes the following:

"Lawyers arguing for incorporation, Alan Gura on behalf of the petitioners McDonald, et al. and former U.S. Solicitor General Paul Clement for the National Rifle Association, took two separate and distinct paths in their arguments.  Gura argued that the High Court should reverse the 7th Circuit’s decision on the grounds that the Second Amendment is an incorporated right through the Fourteenth Amendment’s 'privileges and immunities' clause, while Clement focused his argument on the Fourteenth Amendment’s 'due process' clause.

"It seems that Paul Clement had the more persuasive argument."

Read the transcript of this morning's oral arguments.