WASHINGTON – The Supreme Court appeared willing Tuesday to say that the Constitution’s right to possess guns limits state and local regulation of firearms. But the justices also suggested that some gun control measures might not be affected.
The court heard arguments in a case that challenges handgun bans in the Chicago area by asking the high court to extend to state and local jurisdictions the sweep of its 2008 decision striking down a gun ban in the federal enclave of Washington, D.C.
The biggest questions before the court seemed to be how, rather than whether, to issue such a ruling and whether some regulation of firearms could survive. On the latter point, Justice Antonin Scalia said the majority opinion he wrote in the 2008 case “said as much.”
The extent of gun rights are “still going to be subject to the political process,” said Chief Justice John Roberts, who was in the majority in 2008.
At the very least, Tuesday’s argument suggested that courts could be very busy in the years ahead determining precisely which gun laws are allowed under the Second Amendment’s “right to keep and bear arms,” and which must be stricken.
James Feldman, a Washington-based lawyer representing Chicago, urged the court to reject the challenges to the gun laws in Chicago and its suburb of Oak Park, Ill. Handguns have been banned in those two places for nearly 30 years.
The court has held that most of the rest of the Bill of Rights applies to state and local laws. But Feldman said the Second Amendment should be treated differently because guns are different. “Firearms are designed to injure and kill,” he said.
But Feldman ran into difficulty with some of the five justices who formed the majority in 2008. Justice Anthony Kennedy, who joined Scalia’s opinion two years ago, said it seemed to him that Feldman was arguing that the court got it wrong two years ago.
Kennedy said other constitutional provisions have been applied, or “incorporated,” against the states without stripping them of the authority to impose reasonable regulations. “Why can’t we do the same thing with firearms?” he asked.
Of the other two justices in the majority then, Justice Samuel Alito also appeared to agree that the Second Amendment should be extended to state and local laws and Justice Clarence Thomas said nothing, as is his custom during argument.
Tuesday’s statements from the court also left little doubt that it would not break new ground in how it might apply the Second Amendment to states and cities.
As in earlier cases applying parts of the Bill of Rights to the states, the justices suggested they use the due process clause of the 14th Amendment, passed in the wake of the Civil War, to ensure the rights of newly freed slaves.
The court has relied on that same clause — “no state shall deprive any person of life, liberty or property without due process of law” — in cases that established a woman’s right to an abortion and knocked down state laws against interracial marriage and gay sex.
This is the approach the National Rifle Association favors.
For years, Scalia has complained about the use of the due process clause. But Tuesday he said, “As much as I think it’s wrong, even I have acquiesced in it.”
Alan Gura, the lawyer for the Chicago residents challenging the statute, urged the court to employ another part of the 14th amendment, forbidding a state to make or enforce any law “which shall abridge the privileges or immunities of citizens of the United States.”
They argue this clause was intended as a broad guarantee of the civil rights of the former slaves, but that a Supreme Court decision in 1873 effectively blocked its use.
Breathing new life into the “privileges or immunities” clause might allow for new arguments to shore up other rights, including abortion and property rights, liberal and conservative legal scholars have said.
But why use that approach, calling for overturning 140 years of law, Scalia said, “unless you’re bucking for a place on some law school faculty?”
Gura assured the court he is not in search of a job.
A decision is expected by the end of June.
The case is McDonald v. Chicago, 08-1521.
U.S. Sens. Jon Tester, D-Mont., and Kay Bailey Hutchison, R-Texas, wrote the Supreme Court urging it to strengthen gun rights. His office sent out the following press release Tuesday afternoon:
Saying gun rights rise above party differences, U.S. Senators Jon Tester and Kay Bailey Hutchison are again teaming up to urge the U.S. Supreme Court to strengthen gun rights for law-abiding Americans.
The Court today began hearing arguments in the case McDonald v. City of Chicago. The case will determine whether state and local governments have the right to restrict gun ownership.
Tester, D-Mont., and Hutchison, R-Texas, are leading the charge in Congress, urging the Supreme Court to side in favor of stronger gun rights.
Last October, they wrote and delivered a 59-page friend-of-the-court brief to the Court with signatures from 309 senators and representatives from both parties—more members of Congress than any friend-of-the-court brief in U.S. history.
“We’ve seen a lot of success this last year in making our gun rights in this country stronger,” said Tester, who serves as vice chairman of the Congressional Sportsmen’s Caucus. “And it’s a result of us working together. This isn’t about partisan politics. It’s about making sure law-abiding folks have the same rights under our Constitution, no matter where they live.”
“Even after the Supreme Court’s decision in the Heller v. District of Columbia case, we’ve seen cities and states continue to enact restrictions and regulations that infringe on the rights of Americans to own a firearm, and to justify these actions by arguing the Second Amendment does not apply to the states,” Hutchison said. “I’m confident that after hearing the arguments in McDonald v. City of Chicago, the Supreme Court will make clear once and for all that an individual’s right to keep and bear arms does not depend upon where he or she lives in America.”
Tester and Hutchison also led the effort in Congress to support gun rights in the landmark Supreme Court case Heller v. District of Columbia. That case overturned Washington, D.C.’s longstanding ban on firearms.