In last year's Heller decision, both the majority and the dissenters reviewed the history of ratification of the Second Amendment. This time, when reviewing Chicago's ordinance, they'll likely look to the debate over the 1868 adoption of the Fourteenth Amendment (which is what provides an avenue for the federal Bill of Rights to apply to the states).
Declan McCullagh may have summed up the political reality that will result in the Supreme Court striking down Chicago's notoriously oppressive anti-gun laws in these two paragraphs of his article:
If the Supreme Court justices can define a fundamental right to privacy that "is broad enough to cover the abortion decision" and render certain state laws invalid -- even thoughthe words "privacy" and "abortion" appear nowhere in the text of the U.S. Constitution -- would they really want to risk a public outcry by ruling a well-documented right to self-defense is somehow less fundamental?
I'm betting the answer is no. Not even the Supreme Court likes to deviate too much from public opinion and academic consensus, and when you have two-thirds of the states and three-quarters of Americans holding broadly pro-gun views, this would be one grassroots revolt that the justices have no interest in creating.
Given that all the states in the Union save Vermont, however reluctantly, do issue permist for pistol ownership - Vermont very sensibly has NO requirement that someone who wants to carry concealed or own a pistol must first get a permit from the government - that something like 42 states are "must issue" states, and that almost all the states allow concealed carry by citizens with the appropriate permits, saving only that they can't carry in government buildings, schools and on properties posted as being gun-free zones, the Supremes are going to have to face reality in America even though four of them won't like what they see very much. I hope Alan Gura can work into his brief the fact, backed by FBI statistics, that everywhere honest citizens can carry concealed and own pistols legally without a lot of government fowl feces, crime goes down across the board; that an armed society is perforce a polite society.
Further, McDonald vs Chicago has broader implications for the country. If the Supreme Court holds that a municipality cannot legally bar citizens from owning handguns, and that Chicago's so-called 'permit process' is illegal, the door will be open for challenges to similar laws across the country. I'm thinking specifically of New York City's Sullivan Law, which requires people who live in New York City to get permits even for longarms and makes ownership of a pistol, never mind concealed carry of one, next to impossible unless you are, shall we say, very well off and very well politically connected.
A favorable ruling in this case could very will put a stake through the heart of the Brady Bunch and their fellow travelers and put the anti-gun movement in its grave. Let's hope I'm right.
