Court takes up another gun law challenge

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Washington – The U.S. Supreme Court appears poised to hold that the Second Amendment protections established two years ago in D.C. v. Heller apply to cities and states through the Fourteenth Amendment. But whether the extent of those protections requires the Court to strike down Chicago’s handgun ban remains unclear.

In McDonald v. City of Chicago, a group of residents and a local rifle association challenging Chicago’s ban on handguns urge the Court to hold that the Second Amendment’s right to bear arms is fundamental, and therefore applies equally to cities and states.

The city contends the right at issue in Heller was federal only, and local municipalities have the power to impose gun laws that officials believe are necessary to protect citizens.

The plaintiffs and amicus curiae urging the Court to apply Heller to cities and states are advocating for a number of legal pathways to that result.

Overturn 140-year-old precedent?

The group challenging the handgun ban seemed to shoot for the moon in their argument, urging the Court to find that the Second Amendment applies to the states by way of the Privileges or Immunities Clause.

That result would likely require the Court to overturn seminal rulings in The Slaughterhouse Cases of 1873 and its progeny, which held that the right to bear arms does not come from the Constitution. Instead, they existed prior to the Constitution’s adoption and therefore do not extend through the Privileges or Immunities Clause.

But at oral arguments Tuesday, several justices – including Justice Antonin Scalia – bristled at that approach, hinting instead that extending the right through the doctrine of substantive due process would get the same result without upending century-old precedent.

“Do you think it is at all easier to bring it under the Privileges or Immunities Clause than to bring it under our established law of substantive due process?” Scalia asked attorney Alan Gura of the Washington firm Gura & Possessky, who represented the plaintiffs. “And if the answer is no, why are you asking us to overturn 140 years of prior case law – unless you are bucking for a place on some law school faculty?”

Scalia, famous for his strict constructionist approach to constitutional law which eschews doctrines like substantive due process, indicated that he was willing to apply that doctrine even if he doesn’t agree with it.

“As much as I think it is wrong,” Scalia said, “even I have acquiesced to it.”

Gura – who successfully argued the Heller case – said that the Privileges or Immunities Clause better represented the “rights protected under any free society,” such as the right to bear arms.

Justice Stephen Breyer wondered about the effect of the City of Chicago’s argument that gun regulations are necessary to save lives. In its briefs, the city gave statistics showing that the handgun bans reduce violent crimes.

“Here, in every case, it will be on one side life, and on the other side guns,” Breyer said.

Gura said the issue should be decided “not based on what statistics the parties have, but based on the intent of the Framers.”

Substantive due process

Former Solicitor General Paul Clement, now a partner in the Washington office of King & Spaulding, arguing on behalf of the National Rifle Association, urged the use of the substantive due process clause to avoid the need to overturn precedent.

“Incorporating the Second Amendment through the Due Process Clause is remarkably straightforward,” Clement said.

But Justices Anthony Kennedy and John Paul Stevens wondered if the Court was required to incorporate the entire federal right, or whether it could simply hold that the core principles of the Second Amendment apply, leaving some wiggle room for states to adopt some gun control laws.

“Would you comment on Justice Kennedy’s question about whether it necessarily incorporates every jot and tittle of the federal right?” Stevens asked Clement, noting that other rights, such as the right to a trial by jury, are not extended without limit to states.

“I think in that respect the Sixth Amendment [jury trial right] is a bit of an outlier,” Clement said. “For most of [the] substantive provisions of the Bill of Rights that have been incorporated against the states, this Court has incorporated basically all the jurisprudence that comes with that.”

Self-defense right?

James A. Feldman, special assistant corporation counsel for Chicago, argued that the Second Amendment should not be incorporated against the states because the “right it protects is not implicit in the concept of ordered liberty.”

But Kennedy wondered how that argument squared with the Heller ruling.

In Heller, the Court held that “there was an individual right to bear arms, and that’s because it was fundamental,” Kennedy said. “If it’s not fundamental, then Heller is wrong, it seems to me.”

Kennedy asked: “How would we draft an opinion that says the right is not fundamental, but that Heller is correct?”

Feldman said that the holding could find the right to bear arms is a “self-defense right we need in the Constitution in order to protect the militia against being disarmed by the federal government,” Feldman said.

“That sounds an awful lot to me like the argument we heard in Heller on the losing side,” said Chief Justice John G. Roberts, Jr.

A decision from the Court is expected later this term.

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