The US Supreme Court on Tuesday takes up another landmark gun rights case, this time examining whether the constitutional right of individuals to keep and bear arms extends to every city and town in the nation.
The case, Otis McDonald v. City of Chicago, challenges a citywide ban on the possession of handguns.
In June 2008, the court struck down a similar handgun ban in Washington, D.C., declaring that the constitution’s Second Amendment protects a right of individuals to have commonly available firearms – including handguns – in their home for self defense. (For Monitor coverage of that decision, click here.)
The decision applied to the federal government and to federal enclaves such as the District of Columbia. But it remained unclear whether the holding would also apply to state and local governments.
That’s the key question in McDonald v. Chicago.
At issue is whether the protections of the Second Amendment apply to gun-control measures passed by state and local governments. If they do, Chicago’s handgun ban may go the way of Washington’s ban.
But first the justices must decide whether the Second Amendment applies to the states, or whether it remains one of the few areas in the Bill of Rights that binds only the national government.
It is no small question. In examining the issue, the justices must go back to the founding era and the debates over passage of the Bill of Rights. After that, they must go back to a watershed moment in American history after the Civil War, when the 14th Amendment was passed in an effort to protect and empower freed slaves in the South.
Constitutional controversy 150 years in the making
The Chicago gun case is forcing the justices to confront a constitutional controversy that has dogged the Supreme Court for nearly a century and a half.
The Bill of Rights was originally conceived and written as a check on national power, a protection to the states and their residents that the federal government would be powerless to infringe certain fundamental rights. But after the Civil War, members of Congress worked for ratification of the 14th Amendment, which seemed by its text to extend the protections of the Bill of Rights to state residents – including freed slaves – facing infringement of those rights by state governments.
The 14th Amendment, passed in 1868, accomplished this by declaring that anyone born in the US was a US citizen. The Amendment added: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws.”
Those 51 words formed the backbone of what would become the American civil rights movement. There was just one problem: Not everyone supported such a radical reorganization of constitutional protections – including a majority of the members of the Supreme Court.
In 1873, the court handed down a 5-to-4 decision in what is called the Slaughterhouse Cases, essentially stripping the 14th Amendment’s privileges and immunities clause of any enforceable meaning. In United States v. Cruikshank (1876), the court ruled 9 to 0 that the First Amendment right to assemble and the Second Amendment right to bear arms were constraints on federal power, not state authority.
Then in 1886, the high court ruled 9 to 0 in Presser v. Illinois that the Second Amendment applied only to the national government. This decision reinforced the court’s earlier ruling that the 14th Amendment had not applied the Bill of Rights to the states.
Later, the Supreme Court began to selectively apply certain constitutional rights to the states, such as the right to fair compensation for publicly taken land, and the protections of the First Amendment. In the years since, nearly all of the guarantees in the Bill of Rights have been applied to the states. One of the few remaining is the Second Amendment.
Cases represent severe mistakes, lawyer claims
In his brief to the court on behalf of the Second Amendment Foundation and a group of Chicago residents, Alan Gura argues that the right to keep and bear arms was extended to the states via the 14th Amendment’s privileges and immunities clause.
He said the three cases referenced above – Slaughterhouse, Cruikshank, and Presser – represented a series of severe mistakes by the Supreme Court and should now be overturned and corrected. “Faced with a clear conflict between precedent and the Constitution, this court should uphold the Constitution,” he wrote in his brief.
Mr. Gura is the same lawyer who argued and won the Washington gun ban case. Gura’s position relying on the privileges and immunities clause is a bold one because, in the years since the Slaughterhouse cases, the high court has relied on a different part of the 14th Amendment – the so-called due process clause – to apply constitutional protections to the states. It has never (at least so far) cited the privileges and immunities clause for that purpose.
As a kind of backup, Gura and lawyers for the National Rifle Association argue that the court could apply the Second Amendment to the states via the due process clause as well.
Lawyers for Chicago disagree. They argue that Slaughterhouse, Cruikshank, and Presser are good law that should be upheld.
“To establish that a particular provision of the Bill of Rights applies to the states, that particular provision … must be so fundamental that it warrants displacing the ability of state and local governments to make their own sovereign choices and legislate for their own conditions,” the Chicago brief says.
“[The Second Amendment] is the only Bill of Rights provision that confers a substantive right to possess a specific, highly dangerous physical item – an item designed to kill or inflict serious injury on people,” the Chicago brief says. Lawyers for the city say state and local officials should have the flexibility to determine gun-control policies on their own without judicial interference.