Civil and Human Rights

Justices Will Weigh Challenges to Gun Laws


WASHINGTON — The Supreme Court announced on Wednesday that it would decide whether state and local gun control laws may be challenged under the Second Amendment.

The court also agreed to hear nine other cases from among those that had piled up over its summer break, including one concerning the constitutionality of an antiterrorism law that is a favorite tool of federal prosecutors.

The Second Amendment case, McDonald v. Chicago, No. 08-1521, addresses a question that was left open last year when the court decided that the Second Amendment protects an individual right to own firearms rather than a collective right tied to state militias.

Last year’s decision, District of Columbia v. Heller, concerned only federal laws and struck down parts of the gun control law in the District of Columbia, a federal enclave. The court ruled that the law violated the Second Amendment by barring law-abiding people from keeping guns in their homes for self-defense.

The new case was brought by residents of Chicago who say their city’s handgun ban is identical to the one struck down in Heller.

Several Supreme Court decisions, all more than a century old, have said that the Second Amendment does not apply to the states.

In June, the United States Court of Appeals for the Seventh Circuit, in Chicago, affirmed the dismissal of the new case, saying it was up to the Supreme Court to overrule its own precedents if it wished to do so. Chief Judge Frank H. Easterbrook, writing for a unanimous three-judge panel of the appeals court, added that it was not certain whether and how the Supreme Court might apply the Second Amendment to the states.

The Supreme Court has ruled that most but not all of the protections of the Bill of Rights apply to the states, thanks to the due process clause of the 14th Amendment, one of the post-Civil War amendments. (Exceptions include the Fifth Amendment’s requirement of indictment by a grand jury and Eighth Amendment’s ban on excessive bail.)

Most legal scholars expect the court to apply the Second Amendment to the states. But many of them are urging the court to take an unusual route to that result. Rather than continuing to rely on the 14th Amendment’s due process clause, the court should, these scholars say, look to the amendment’s “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.”

There is some evidence that the amendment’s writers specifically wanted the clause to apply to allow freed slaves to have guns to defend themselves. Scholars on the right and left believe, moreover, that the clause could play a role in protecting rights not specifically mentioned in the Constitution.

A decision that the Second Amendment applies to the states would not answer most questions about what kinds of gun laws are vulnerable to challenges under the Second Amendment. In the Heller decision, Justice Antonin Scalia seemed to identify quite a few kinds of laws that are presumptively constitutional.

“Nothing in our opinion,” Justice Scalia wrote, “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

The antiterrorism law at issue in a second case the court agreed to hear, Holder v. Humanitarian Law Project, No. 08-1498, makes it a crime to provide various kinds of “material support” to organizations the government says have engaged in terrorist activities. The United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled that the law’s bans on providing “training,” “service” and some kinds of “expert advice and assistance” were unconstitutionally vague.

The case was brought by people and organizations who sought to provide support for what they said were lawful and nonviolent activities of a Kurdish political party and a Tamil group. The two organizations, the Kurdistan Workers’ Party and the Liberation Tigers of Tamil Eelam, have been designated as foreign terrorist organizations by the State Department.

In its brief asking the Supreme Court to hear the case, the government said the appeals court’s decision frustrated “a vital part of the nation’s effort to fight international terrorism.” The brief added that the federal government had charged approximately 120 defendants with violations of the material-support law since 2001 and had obtained about 60 convictions under it.

The law’s challengers filed a separate appeal to the Supreme Court, objecting to another aspect of the appeals court’s ruling, this one upholding bans on providing support consisting of “personnel” or of expert advice derived from scientific or technical knowledge. The Supreme Court consolidated that appeal, Humanitarian Law Project v. Holder, No. 09-89, with the government’s appeal.

“The material support law resurrects guilt by association and makes it a crime for a human rights group in the U.S. to provide human rights training,” David D. Cole, a lawyer for the challengers, said in a statement.

Robert Chesney, a law professor at the University of Texas, said the case was “extraordinarily important.” The material-support law not only provides federal prosecutors with an important tool, he said, but it may also provide the government with a basis for bringing cases in civilian courts against prisoners detained at Guantánamo Bay.


This article can be found in its original form here.

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