The Right to Keep and Bear Arms

Supreme Court to Hear Gun-Rights Case that Reaches Beyond 2nd Amendment

As the high court's 2009-2010 term winds down, Yahoo! News will look at some key cases whose decisions have potential to impact the lives of everyday people

February 26, 2010

Yahoo News - Nearly two years ago, the U.S. Supreme Court struck down a Washington, D.C., handgun ban in a landmark ruling with a 5-4 vote. The decision in District of Columbia v. Heller held that the Second Amendment does indeed protect an individual’s right to gun ownership (although there are still limits). Yet that ruling did not settle the question once and for all.

Why? Because the District is a federal enclave, subject to federal laws. The ruling, therefore, did not address whether the Second Amendment applies to state and local governments. So while the Heller decision was hailed as a big victory for gun-rights advocates, it didn’t stop states or cities from enacting similar laws that restrict gun ownership. (D.C.-adjacent Maryland, for example, could have instituted the exact same ban and not gotten into legal hot water over it.)

But in the next few months, the Supreme Court could take that extra step. On Tuesday, the justices will hear arguments from lawyers on both sides of a case brought by residents of Chicago who are seeking to have a handgun ban in their city struck down. They want the Second Amendment to apply to local governments the same way the high court said it applied to the federal government in Heller.

Otis McDonald is the lead plaintiff in McDonald v. City of Chicago. The retired maintenance engineer says he wants to be able to keep a gun in his home to protect himself. But Chicago’s strict gun-control law, considered very similar to the law struck down in Heller, prohibits him from doing so. (McDonald, who was recently profiled in the Chicago Tribune, was hand-picked by lawyers hoping to bring this challenge. He happens to be black and a Democrat – a rarity among American gun-rights advocates, who are generally perceived to be white Republicans living in suburban or rural areas.)

The legal catch in this case is that it’s not really about the Second Amendment. When Congress passed the Bill of Rights – the first 10 amendments to the Constitution – it only protected people from infringements by the federal government. The Supreme Court later decided that each of the amendments in the Bill of Rights must be applied to the states individually, with specific rulings. The court has done so with most amendments, but thus far not with the Second, which it has explicitly ruled should not be applied to the states.

Instead, what will really be argued before the court is the Fourteenth Amendment, which has often been the vehicle the court has used to apply amendments from the Bill of Rights to the states. This amendment says, among other things, that the federal government cannot make or enforce any law that will "abridge the privileges or immunities of citizens" and cannot "deprive any person of life, liberty, or property, without due process of law."

Lawyers for McDonald will argue their case mostly based on the "privileges or immunities" clause; the National Rifle Association, which has been given a chance to argue before the justices too, will present a case for gun rights that turns more on the "due process" clause.

So, specifically, the question the high court must decide is this: Does the Fourteenth Amendment – either via the privileges-or-immunities clause or the due-process clause – mean that the Second Amendment protects people from state and local laws that abridge their right to bear arms?

The answer to that question involves a lot of complicated legal history and interpretation, and if the court does rule in favor of broader Second Amendment protections, it will almost certainly have to contradict its rulings in earlier cases.

The potential implications of this case are huge – and not just for gun rights. If the privileges-or-immunities argument prevails, it would bring back a constitutional argument that has been effectively dead since 1873, when a decision (known as the Slaughter-House cases) said that the clause only protects rights of national citizenship. But if the court reinterprets this clause, the wording is so broad that some think it could bring a flood of challenges to numerous other laws. Others fear a privileges-or-immunities revival will lead to too much judicial subjectivity.

This case has something for both "gun nuts" and "constitutional nuts," as Supreme Court scholar Ilya Shapiro put it to the Washington Post. It could maintain the status quo; it could dramatically expand the protection of people’s Second Amendment rights; or it could do that and dramatically change an approach to constitutional law.

Whatever the decision, we’ll probably know by the end of June, the last month of the court’s current term.

Gun Case Presents Quandary for Supreme Court Justices

March 1, 2010

Washington Post - As a member of the Junior ROTC, teenager Antonin Scalia toted his rifle on the subway ride back and forth to Queens. As a hunter, he speaks lyrically of stalking wild turkeys. And as a justice, he may have reached the pinnacle of his more than two decades on the Supreme Court when he wrote the majority opinion that said the Second Amendment protects an individual's right to own a firearm.

But when the justices on Tuesday confront the question of whether the amendment applies to state and local governments -- not just the federal government and its enclaves, such as the District of Columbia -- the court's most prominent gun enthusiast faces something of a constitutional quandary.

The most likely path to recognizing gun ownership as a fundamental right is one that has been heavily criticized by Scalia and other conservative scholars, and it seems inconsistent with his belief that the Constitution should be interpreted in terms of its framers' "original meaning."

The alternative, one embraced by an unlikely coalition of libertarian, liberal and some conservative scholars and activists, would apply the Bill of Rights to the states in a way they say is more grounded in the Constitution. But it is also a route that could open what is invariably described as a Pandora's box of additional rights of citizenship -- health care, for instance, or housing.

The debate comes in McDonald v. Chicago, a case with great significance just on the gun-control front. A decision that states and cities may not infringe upon the right to own a firearm for self-defense could eventually call into question all manner of restrictions on gun ownership and registration, limits on who is eligible to own a gun and whether the carrying of weapons can be regulated.

On the surface, the issue would seem "easy as pie," as Scalia sometimes breezily dismisses constitutional decisions that cause other justices deep consternation. It is a challenge of handgun bans in Chicago and the suburb of Oak Park, Ill., that are nearly identical to Washington's restrictions struck by the court in 2008 in the landmark ruling District of Columbia v. Heller.

Most lawyers and scholars who follow the court think the cities have a losing hand; they say it is unlikely the five justices who made up the majority in Heller will decide that the right to own a firearm for self-protection exists only in a federal enclave. But the question of whether the Second Amendment applies to the states was specifically left unanswered in that case.

To most, it might seem illogical that the Bill of Rights would apply only to actions of the federal government, but that was its intent. Over the years, the court has said most of it applies -- or in the court's language is "incorporated" -- through the 14th Amendment.

That post-Civil War amendment was meant to protect rights and outlaw discrimination. It forbade states to pass laws that abridged "the privileges or immunities of citizens of the United States." It said states may not "deprive any person of life, liberty, or property, without due process of law" and guaranteed "equal protection of the laws."

Mostly, the justices have used the "due process" clause to incorporate the majority of the Bill of Rights. The National Rifle Association and others have urged the court to continue to use it to incorporate the Second Amendment.

Reviving another clause

But others, notably scholars from the liberal Constitutional Accountability Center and the libertarian Cato Institute, have urged the court to revive another clause from the 14th Amendment, the one that protects the "privileges or immunities of citizens of the United States" -- 19th-century-speak for "rights." An 1873 Supreme Court decision has buried the "privileges or immunities clause" by saying it covered only a narrow range of national rights, such as traveling to the capital.

The justices said in taking the McDonald case they would decide whether either clause incorporated the Second Amendment. And the exercise will provide interesting revelations.

The liberal dissenters in Heller will decide whether to continue their protest that the Second Amendment does not convey an individual right, or endorse Chicago's position that federalism requires gun control decisions to be left to the states.

Justice Clarence Thomas, Scalia's fellow originalist and another opponent of substantive due process, has signaled he is open to revisiting the privileges or immunities clause. And Justice Sonia Sotomayor, deemed by gun rights organizations as an enemy during her confirmation hearings despite a scant record on the subject, will be casting the first of what could be many votes on gun restrictions.

But Scalia's situation is particularly interesting.

He is unquestionably the court's most outspoken proponent of gun rights. He has lamented in speeches that gun ownership is too often linked with criminal behavior and his hunting trip with then-Vice President Cheney caused a national controversy. His love of the sport goes back to childhood, and he recently waxed about the challenge and allure of turkey hunting to journalist Joan Biskupic for her Scalia biography, "American Original" ...