The landmark 2008 U.S. Supreme Court decision in D.C. v. Heller, declaring an individual right to bear arms under the Second Amendment, may soon be eclipsed by its sequel: McDonald v. City of Chicago, set for argument March 2.

Heller limited the right to the federal enclave of the District of Columbia. McDonald may be the case that makes the right real nationwide, by applying or incorporating the right as a shield against state and local restrictions on firearms as well. The key question before the Court will be which part of the 14th Amendment should be invoked in restricting the states: the due process clause, the privileges or immunities clause or none of the above.

A major segment of the case began, however, not with lofty constitutional quarrels but the long-ago murder of a lawyer and judge in a Chicago courtroom. It was Oct. 21, 1983, when wheelchair-bound Hutchie Moore, using a handgun he had hidden under a blanket, shot his ex-wife’s divorce lawyer, James Piszczor, as well as the presiding judge in the Cook County Circuit Court, Henry Gentile, on the 16th floor of the Daley Center.

Piszczor’s best friend, Christopher Walsh, was in Washington attending a reunion of clerks to then-Chief Justice Warren Burger, when he heard of Piszczor’s death. He was staying at the home of Carter Phillips, like Walsh a former Burger clerk.

“I flew back that night,” Walsh recalled last week. “Jim’s wife, Maureen, asked me to issue a press release the next morning.” In that release, Piszczor’s widow launched a drive to restrict handguns in their hometown of Oak Park, Ill., a Chicago suburb. “She said that part of the problem that led to Jim’s death was access to handguns, and she didn’t want another widow to have to deal with what she was dealing with.”

That ordeal transformed Walsh’s life, turning him into an anti-handgun crusader in his hometown. It was a successful crusade; the town board passed a ban on handgun possession that was later endorsed in a citizen referendum. And because a similar ordinance in nearby Morton Grove, Ill., had been upheld by state courts, the Oak Park ordinance stood unchallenged for more than 20 years. That streak ended after the Supreme Court’s 2008 decision Heller. The next day, the National Rifle Association (NRA) challenged Oak Park’s ordinance in court along with Chicago’s. As the case progressed, it was combined with a separate challenge to Chicago’s ordinance filed by several residents seeking handgun licenses.

“People are going to die in Oak Park and elsewhere if the Court overturns our ordinance and Chicago’s,” said Walsh. “We’re not telling other communities what to do, but we have our own experience with handguns, and this is what has worked for us.”

A NEW APPROACH

Walsh, now a solo practitioner in Oak Park and Chicago, filed a brief before the Supreme Court on behalf of the Oak Park Citizens Committee for Handgun Control. Among those also on the brief are his old friend Phillips of Sidley Austin and his daughter Megan Walsh, who works for Sidley in Chicago.

In spite of that and other human stories behind the case before the high court, it is likely to be argued at a more abstract level. The NRA brief makes no mention of the courtroom murders in Chicago, focusing instead on its primary argument that the right declared in Heller should be applied or incorporated against the Oak Park and Chicago ordinances through the due process clause of the 14th Amendment.

Not incorporating the right in this way would be a “jarring and unjustifiable departure” from tradition, the NRA brief asserted. Former Solicitor General Paul Clement, now at King & Spalding, will argue for the NRA.

But the Court is also being urged to travel a new path to the same result Clement will seek: the privileges or immunities clause, which says that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” That provision was turned into a virtual dead letter by the high court’s Slaughterhouse cases in 1873. A growing chorus of academics across the political spectrum has said the time is right for the Court to overturn those cases and revive the clause as a more solid foundation for individual rights. Alan Gura of Gura & Possessky, who will be arguing against the Chicago ordinance, offers in his brief a detailed history of the privileges clause and asserts it should be given “full effect” in the case before the Court.

“The privileges or immunities clause is front and center before the Supreme Court for the first time in at least 70 years,” said Doug Kendall of the liberal Constitutional Accountability Center, which has campaigned hard to get it there, even though it places them on the side of gun rights advocates. Without taking a position on the constitutionality of the Oak Park and Chicago ordinances, the center wrote a brief advocating the “privileges or immunities approach” on behalf of professors including Yale Law School liberal Jack Balkin and Northwestern University School of Law’s Steven Calabresi, a co-founder of the Federalist Society.

Since most of the rest of constitutional rights have already been incorporated, Kendall added, “This the best and perhaps the last way to raise this issue. I don’t think there will ever be a better time.”

STAYING LOCAL

But like the NRA, other groups are hedging their bets, telling the high court that the traditional due process clause approach would be acceptable. The NAACP Legal Defense and Educational Fund urges the Court to look at the due process clause “in the first instance,” turning to privileges or immunities only if necessary.

Meanwhile, the city of Chicago will be arguing the position that neither clause of the 14th Amendment justifies applying the Second Amendment to state and local regulation. Especially because of the inherent danger of firearms, the city will assert, localities should be allowed to ban handguns. Washington solo lawyer James Feldman, a veteran of the U.S. solicitor general’s office, will argue for the city.

Chicago Deputy Corporation Counsel Benna Solomon acknowledges the city has an uphill fight in light of the Court’s Heller decision. “Some people see a lot in Heller that they read as tea leaves,” said Solomon, a former Byron White law clerk. “I’m not sure I’ve run into anyone who thinks our ordinance will easily survive.”