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James O'Rourke - Criminal defense lawyer Portland Oregon

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Supreme Court takes next step in deciding how much protection gun owners have from regulation of their right to bear arms under the Second Amendment

This term, the United States Supreme Court will take the next step in deciding how much protection gun owners have from regulation of their right to bear arms under the Second Amendment. The issue this term is the constitutionality of the gun regulations of the City of Chicago.

The City of Chicago requires the registration of all firearms kept by citizens within the city boundaries. Moreover, the City requires that the registration be renewed, with payment of a fee, every year. Basically all of the applications for registration of a handgun are denied. If a person fails to register a firearm, or fails to renew a registration, the firearm is deemed “unregisterable” and illegal, even if the firearm is transferred to another person.

There is no question that this law violates the Second Amendment, under the analysis set out by the United States Supreme Court in District of Columbia v. Heller, where the Court struck down a similar outright ban on handgun ownership. But the question is whether the Second Amendment applies to regulations by states?

That is the question that the United State’s Supreme Court will answer this term in McDonald v. City of Chicago. In that case, Mr. McDonald applied to register a handgun, which was denied. He appealed. Mr. McDonald’s appeal was joined with several other appeals from other individuals, some of whom had tried to register handguns, and others who had tried to register firearms deemed “unregisterable.” The case was advanced and argued by the National Rifle Association.

As a technical matter of constitutional law, the question is whether the right guaranteed by the Second Amendment applies to the states through the Fourteenth Amendment as are other important rights, such as freedom of speech and the right to a jury trial. Under the Fourteenth Amendment, other rights have been deemed to be so “rooted in our traditions and our conscience” that they become fundamental rights which cannot be denied without due process of law.

Based on the oral argument on this case on March 2, 2010, it appears that the majority of the Supreme Court is ready to apply the Second Amendment to the states. If the Court decides to apply the Second Amendment to the states, the result would be that Chicago’s outright ban on handguns and enormously burdensome and costly registration system will be declared null and void.

There are still more battles to be fought on this front. Even if the Court applies the Second Amendment to the states and recognizes gun ownership as a fundamental right, there will still be a question as to what level of regulation cities and states can impose on gun ownership.

One thing is certain, gun rights advocates will continue to challenge burdensome regulations that interfere with gun ownership rights. It may take several years to answer all of the questions about how much protection gun owners enjoy under the Second Amendment, but the battle is now appears to be half won.

As an Oregon Criminal Defense Lawyer, Mr. O’Rourke represents persons charged with crimes involving firearms and persons seeking Restoration Of Gun Rights In Oregon.