Thursday, March 4, 2010

Supreme Court Signals States Must Respect Gun Rights

Top U.S. Court Signals States Must Respect Gun Rights

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U.S. Supreme Court justices signaled they are poised to extend constitutional protections for gun owners to state and local laws in a case that may invalidate a handgun ban in Chicago.

Hearing arguments in Washington today, several justices suggested that the right to bear arms is so fundamental it should restrict states and cities as well as the federal government. They pointed to the 2008 ruling, District of Columbia v. Heller, that said the Constitution’s Second Amendment protects individual rights.

“I don’t see how you can read Heller and not take away from it the notion that the Second Amendment, whether you want to label it fundamental or not, was extremely important to the framers in their view of what liberty meant,” said Chief Justice John Roberts, a member of the 5-4 majority in the earlier case.

Justice Anthony Kennedy, a frequent swing vote and another member of the Heller majority, made similar comments. “If it’s not fundamental, then Heller is wrong,” he said.

A ruling against Chicago, the only major U.S. city with a blanket prohibition on handguns, wouldn’t necessarily jeopardize less stringent gun laws. Several members of the 2008 majority, including Roberts and Justice Antonin Scalia, said states and cities might still be able to enact other restrictions.

“We said as much in Heller,” said Scalia, who wrote the earlier ruling.

Bill of Rights

Kennedy said that, as with other provisions in the Bill of Rights, the court had let states impose “reasonable” regulations. “Why can’t we do the same thing with firearms?” he asked.

The ban is being challenged in a pair of lawsuits by four Chicago residents, including 76-year-old Otis McDonald, and the National Rifle Association.

Like the rest of the Bill of Rights, the Second Amendment was originally aimed only at the federal government. The Supreme Court has applied some, though not all, of the rights in the first eight amendments to the states by “incorporating” them into the 14th Amendment’s due process clause.

Justice Stephen Breyer, a dissenter in Heller, today questioned the wisdom of applying the Second Amendment beyond the federal government. He said state legislatures may be better equipped than federal judges to decide whether the lives saved by gun restrictions are worth the infringement on ownership rights.

“Balancing life versus guns?” Breyer said. “How are federal judges supposed to carry this out?”

Constitutional Choice

McDonald’s lawyer, Alan Gura, answered, “That policy choice was made for us in the Constitution.” Paul Clement, representing the National Rifle Association, said the Second Amendment “protects a fundamental pre-existing right that is guaranteed to the people.”

Chicago’s lawyer, James Feldman, said that states and local government have long been allowed to ban particular types of weapons. Chicago lets residents keep shotguns and rifles.

“The city of Chicago has come up with something that is well within our tradition,” Feldman said.

The justices showed little interest in Gura’s suggestion that they incorporate the Second Amendment through the long- dormant privileges-or-immunities clause of the 14th Amendment, rather than the due process clause.

Academics and advocates from both sides of the political spectrum are urging the court to reconsider an 1873 ruling that all but nullified the privileges-or-immunities clause.

Roberts told Gura he had a “heavy burden” to carry on that argument. Scalia said he saw little reason to overturn 140 years of law, “unless you’re bucking for a place on some law school faculty.”

The case is McDonald v. City of Chicago, 08-1521.

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