WASHINGTON — The Supreme Court on Tuesday appeared poised to strike down strict state and local gun bans, though in the most judicially conservative way possible.
During a highly anticipated oral argument, the same justices who eliminated the District of Columbia's near-total handgun prohibition in 2008 suggested strongly that they thought that Chicago's handgun ban was equally incompatible with the Second Amendment.
"The right to keep and bear arms is right there. It's right there in the Bill of Rights," Justice Antonin Scalia said.
In this case, the court's eventual reasoning could matter as much as the final result.
The justices indicated Tuesday that they were likely to apply the due-process clause of the 14th Amendment to extend gun ownership rights. A more aggressive alternative would be to overturn an 1873 precedent that had gutted part of the 14th Amendment. Doing that, though, would have far-reaching consequences for rights and laws that have nothing to do with gun ownership.
"It's a heavy burden for you to suggest that we ought to overrule that (1873) decision," Chief Justice John G. Roberts told one of two attorneys who were arguing on behalf of gun owners.
Scalia and Roberts were part of the court's 5-4 majority that struck down Washington's gun ban in 2008. The landmark District of Columbia v. Heller decision was the first time the court ruled that the Second Amendment's right to bear arms extends to individuals and not just formal militias.
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."
The 2008 decision was limited to federal jurisdictions, because the first 10 amendments that make up the Bill of Rights cover only the federal government.
Finding that gun ownership is an individual right makes it harder, but not impossible, for the federal government to impose gun restrictions. Certain laws, such as those that ban gun ownership by former felons, might still survive.
"It's still going to be subject to the political process," Roberts stressed.
Underscoring the issue's political visibility, lawmakers including Sens. George LeMieux, R-Fla., and Max Baucus, D-Mont., observed the proceedings.
In the case heard Tuesday, called McDonald v. City of Chicago, the court must decide whether the Second Amendment extends to state and local governments. Chicago's ban is essentially as strict as Washington's, permitting handgun ownership only by licensed private detectives and the holders of old handgun licenses.
"Firearms, unlike anything else protected in the Bill of Rights, are designed to injure and kill," James Feldman, Chicago's special assistant corporation counsel, told the court, adding that "this is not fundamental, unlike freedom of speech or freedom of religion."
Feldman appeared to have some allies on the court, including Justice Stephen Breyer. Mostly, though, he faced skeptical questions from justices whose primary focus seemed to be what route they'd take to expanding the Second Amendment.
This is called "incorporating" the Second Amendment against the states. It's already happened for most of the rest of the Bill of Rights, through the 14th Amendment's due process clause.
The 14th Amendment declares that states can't "deprive any person of life, liberty or property, without due process of law."
"The case for incorporating the Second Amendment through the due process clause is remarkably straightforward," former Bush administration Solicitor General Paul Clement argued on behalf of the National Rifle Association.
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 1873 decision called the Slaughterhouse Cases rendered this "privileges or immunities" clause toothless.
Attorney Alan Gura, who won the 2008 D.C. v. Heller case, urged the court to expand the Second Amendment by overturning the 1873 decision. This would restore power to the privileges or immunities clause, a prospect that clearly worried justices from both sides of the ideological fence.
"What unenumerated rights would we be declaring?" Justice Ruth Bader Ginsburg asked.
After Gura responded that "it's impossible to give a full list of all the unenumerated rights that might be protected by the privileges and immunities clause," Justice Samuel Alito questioned whether these might extend as far as a "right to contract," which in Supreme Court history is an excruciatingly controversial idea. Such a right would make it easier for businesses to, say, challenge minimum wage laws.
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