During an hour-long oral argument at the high court on Tuesday, several justices exhibited a willingness to enforce their landmark 2008 gun-rights decision at the state and local level.
If they do so, the decision may doom not only the Chicago handgun ban at the center of Tuesday’s case, but other handgun bans and some of the toughest state and local gun-control laws in the country. (For Monitor coverage of what the case means for gun-control laws, click here.)
The only remaining question in McDonald v. Chicago was which constitutional mechanism the majority justices might use to apply the 2008 holding to state and local governments. (For a preview of the case, click here.)
Two years ago, the high court recognized an individual right to possess handguns in the home for self defense. By a 5-to-4 vote, the court struck down a ban on handguns in Washington, D.C. That case was District of Columbia v. Heller.
Because the Second Amendment has never been applied to the states, the ruling could only be enforced against the national government and in federal enclaves like the District of Columbia.
A similar handgun ban is at issue in the Chicago case. But before judges can consider the constitutionality of the ban, the Supreme Court must decide whether the same Second Amendment rights it imposed in the Heller case will also apply in Chicago and across the country. (For Monitor commentary, click here.)
There are two possible ways for the high court to extend Second Amendment protections to state and local governments. Both are found within the text of the 14th Amendment.
Questions and comments by four of the justices who formed the five-justice majority in the Heller case suggest a preference for using the due-process clause of the 14th Amendment.
'Why are you asking us to overturn 140 years of ... law?'
The lead legal brief in the Chicago case, filed on behalf of the Second Amendment Foundation, had suggested that the high court bypass the traditional due-process clause approach and instead chart a wholly new constitutional path by relying on the 14th Amendment’s “privileges and immunities” clause.
The bold legal argument called for overruling high court precedents dating to 1873, 1876, and 1886. It was an apparent effort to try to woo the constitutional affections of Justice Antonin Scalia, an outspoken critic of reliance on the due-process clause as a source of power for the high court to establish constitutional rights.
Analysts were watching closely to see how the justices – and Justice Scalia in particular – would react to this gambit.
It did not go well.
The answer came within a few minutes of the start of the argument when Scalia asked Second Amendment Foundation lawyer Alan Gura whether he thought it would be easier for the court to extend Second Amendment protections to the states via Mr. Gura’s suggested privileges and immunities approach.
“No,” Gura answered, a bit stunned.
“If the answer is ‘No,’ why are you asking us to overturn 140 years of established law?” Scalia asked, with characteristic bluntness. The justice opined that the only possible reason to urge such a radical course would be to obtain a professorship and bragging rights at some exalted university.
Spectators could almost hear the air coming out of the privileges-and-immunities argument.
Then Scalia delivered the coup de grace. Why not present the due process clause as the better route to applying the Second Amendment to the states, Scalia offered. He allowed that there had been times he’d “acquiesced to it.”
The court had granted 10 minutes for former Solicitor General Paul Clement to present an argument on behalf of the National Rifle Association. Mr. Clement urged the justices to follow the path of least resistance by using the due-process clause to apply the Second Amendment to the states. He assured them it would be “remarkably straightforward.”
Justice John Paul Stevens, who dissented in the Heller case, told Clement that the Supreme Court hadn’t applied a federal constitutional right to the states in 30 years.
Clement acknowledged that there aren’t many rights left in the Bill of Rights that haven’t already been applied to the states. Other than gun rights, they include the right to a grand jury indictment and a jury trial in certain civil cases.
Second Amendment a 'different' kind of right?
Arguing on behalf of the City of Chicago, James Feldman at times seemed to be trying to convince the court to overturn its decision in the Heller case.
He argued that the Second Amendment was a different kind of right because it involved a dangerous and deadly weapon. “This is a right that has always been subject to the political process [for regulation],” he said.
Chief Justice John Roberts replied that, even if the high court applies Second Amendment protections to gun owners in states and cities, it won’t necessarily mean cities and states will lose their ability to enact local gun laws.
He said the court had not yet defined the content of Second Amendment rights.
Justice Anthony Kennedy suggested that the court has applied constitutional rights to the states but also allowed the states amplitude to enact regulations. “Why can’t we do the same thing with firearms?” he asked.
Justices Sonia Sotomayor and Ruth Bader Ginsburg both noted that the Heller decision had suggested that “reasonable” gun regulations at the state and local level would not violate the majority’s interpretation of Second Amendment rights.
Feldman countered that Chicago believes its handgun ban is a reasonable regulation that does not seriously infringe a right of self-defense, since residents can possess rifles for that purpose.
Scalia responded that the 2008 Heller decision was “careful not to impose a broad prohibition [on gun regulations], because [the majority justices] recognized this is a national problem.”