Supreme Court case could limit local controls on firearms

McClatchy NewspapersFebruary 26, 2010 

WASHINGTON — State and local gun laws are in the crosshairs as the Supreme Court prepares for a historic oral argument Tuesday.

The conservative majority that struck down Washington, D.C.'s, handgun ban in 2008 appears poised to stretch the Second Amendment further. The hourlong session Tuesday will let justices test-fire arguments in a case in which the reasoning could be as intriguing as the outcome.

For gun owners and lawmakers, the case called McDonald v. City of Chicago presents one bottom line: If the court agrees that the Second Amendment covers state and local governments, as seems likely, some but not all gun restrictions will be blown away.

For constitutional scholars, the court's means may be as important as its ends. In order to eliminate Chicago's gun ban, court conservatives could end up overturning a 137-year-old precedent that's hindered the expansion of new rights.

With the case so crucial, the sidelines are jammed. Forty-nine amicus briefs have flooded the court, representing groups ranging from Jews for the Preservation of Firearms Ownership to specialists in 17th-century English history.

The attorneys general for Florida, Texas, Alaska and 34 other states have urged the court to strike down Chicago's gun ban. So have a majority of members of Congress, and individual prosecutors from 34 California counties.

"The people's right to arms is inextricably tied to the equally fundamental right to defend oneself, to fight to save one's own life," Fresno County District Attorney Elizabeth A. Egan and her colleagues argue.

The U.S. Conference of Mayors joined 55 members of the House of Representatives and others in warning against expanding gun rights. Separately, Sacramento, Seattle and eight other major cities have urged the court to uphold Chicago's gun law.

"The 18th-century version of the right to bear arms codified in the Second Amendment ... imperils law-enforcement strategies with enormous promise in the fight against violent crime," the mayors group said.

The Second Amendment says that "a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

For decades, the "well regulated militia" clause incited debate but no definitive court ruling. Some called gun rights fundamental, enjoyed by individuals much like the right to speak or worship. Others, stressing the well-regulated militia reference, thought that governments had more authority to control guns.

The Supreme Court finally took sides in the 2008 case called District of Columbia v. Heller. In striking down Washington's strict handgun ban, the court's majority concluded that Second Amendment rights have nothing to do with militia membership.

"We are aware of the problem of handgun violence in this country," Justice Antonin Scalia wrote for the majority, "but the enshrinement of constitutional rights necessarily takes certain policy choices off the table."

Since that ruling, Justice Sonia Sotomayor has replaced the retired David Souter. She seems skeptical of expansive Second Amendment claims. In a 2009 appellate court case involving New York's ban on nunchucks, Sotomayor joined colleagues in ruling that the Second Amendment didn't cover state laws.

District of Columbia v. Heller applied only to federal jurisdictions, because the Bill of Rights, as originally written, covers federal but not state and local governance.

To expand the Second Amendment beyond federal boundaries, court conservatives must figure out what constitutional provisions allow them to do so. The 14th Amendment, adopted after the Civil War, has been the standard tool for expanding other rights.

It declares that states can't "deprive any person of life, liberty, or property, without due process of law." This due process clause has been used previously to apply, or "incorporate," other Bill of Rights guarantees to state and local levels.

However, the 14th Amendment also declares that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." An otherwise obscure 1873 decision in what are called the Slaughterhouse Cases rendered this "privileges or immunities" clause toothless.

If the court overturns the Slaughterhouse Cases and revives the privileges or immunities clause as a way to end Chicago's gun ban, a potential side effect might give future plaintiffs another basis to argue for expanding other rights.

"It was never the intent of the 14th Amendment to strip the states of their existing sovereignty to protect and regulate the right to bear arms and replace it with a federal standard," Sacramento, Seattle and other cities argued in their legal brief.

Even if the court strikes down Chicago's strict prohibition, other gun laws will remain. Scalia noted in the 2008 ruling that certain laws may still be reasonable, such as those that ban firearm possession by felons or forbid firearms to be carried in places such as schools and government buildings.

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