By Kenneth Jost
The Supreme Court appears all but certain to enforce Second Amendment gun rights against state and local governments, but without opening up a new avenue of constitutional rights litigation under an all but forgotten clause of the Fourteenth Amendment.
None of the five justices who voted two years ago to use the Second Amendment to strike down the District of Columbia’s handgun ban indicated second thoughts during arguments on March 2 in McDonald v. Chicago, a challenge to a similar handgun ban by the city of Chicago.
The Chicago case is different from the Washington, D.C., case known as Heller because the District of Columbia is a federal jurisdiction. On that basis, the 2008 ruling applies only to the federal government, not state or local governments.
At one point, Justice Anthony M. Kennedy pointedly asked the lawyer representing Chicago how the court could rule for the city without undermining the ruling in the D.C. case. “How could some member of the Court write this opinion to say that this right is not fundamental, but that Heller was correct?”
The liberal justices who dissented in Heller appeared to make little headway with questions aimed at giving state and local governments greater discretion to regulate firearms than the federal government.
“Every case will be on one side guns, on the other side human life,” Justice Stephen G. Breyer told the lawyer representing the Chicago residents challenging the handgun ban. “How are federal judges … rather than legislatures in the states .. . . supposed to carry this out?”
Going into the arguments, court watchers were closely examining the strategy by plaintiffs’ lawyer Alan Gura of stressing a largely untested theory of recognizing constitutional rights under the Fourteenth Amendment’s so-called Privileges or Immunities Clause.
That clause says the states cannot “abridge the privileges or immunities of citizens of the United States.” It has gone largely unused since the Supreme Court in 1873 signaled that states, not the federal government, defined most of the rights of citizenship. Other provisions of the Bill of Rights have been enforced against the states in a step-by-step process called “incorporation” based on the Fourteenth Amendment’s Due Process Clause.
Gura, the Alexandria, Va., lawyer who knocked out the D.C. handgun ban, had gotten only a couple of minutes into his argument when Chief Justice John G. Roberts Jr. sharply challenged the idea of overturning a nearly 140-year-old precedent. “It's a heavy burden for you to carry to suggest that we ought to overrule that decision,” Roberts said.
“Why do you want to undertake that burden instead of just arguing substantive due process,” Justice Antonin Scalia asked later, “which as much as I think it's wrong, I have even I -- have acquiesced in it?”
Gura insisted the 1873 decision known as the Slaughterhouse Cases was “mistaken” and the Privileges or Immunities Clause was the better method of enforcing constitutional rights against the states. But he appeared to disconcert several of the justices when he said that approach would apply all of the Bill of Rights provisions to the states, including the currently unincorporated requirements of a grand jury indictment in all criminal cases and jury trial in most civil cases.
Appearing on behalf of the National Rifle Association as a friend of the court, former U.S. Solicitor General Paul Clement told the justices that “selective incorporation” was a “remarkably straightforward” way to apply the Second Amendment to the states. As solicitor general, Clement had represented the federal government in the D.C. case, urging the court to recognize a Second Amendment right to possess firearms but subject to extensive regulation.
The hour-long arguments shed little light on the potential scope of the Second Amendment right if, as expected, it is applied to state and local gun laws. Writing for the majority in the 2008 case, Scalia suggested four categories of laws likely to be upheld. They included bans on carrying concealed weapons, prohibitions on possession of firearms by felons or the mentally ill, restrictions on carrying of firearms in “sensitive places such as schools and government buildings,” and laws setting “conditions and qualifications” on firearm purchases.
Roberts stressed the limited nature of the court’s ruling to say that gun debates would still play out mostly in the political process, not in the courts. “All the arguments you make against incorporation, it seems to me, are arguments you should make in favor of regulation under the Second Amendment,” Roberts told Chicago’s lawyer, former deputy solicitor general James Feldman. “We haven't said anything about what the content of the Second Amendment is beyond what was said in Heller.”
Sources: Oral arguments in McDonald v. Chicago will be posted on the Supreme Court’s Web site here. Briefs and other materials can be found on SCOTUSWiki here.
For background, see Kenneth Jost, “Gun Rights Debates,” CQ Researcher, Oct. 31, 2008, here.
By Kenneth Jost
Posted by Kenneth Jost on 3/02/2010 02:51:00 PM