Feb. 19 (Bloomberg) — For gun-control advocates, defeat may be inevitable in the Chicago handgun-ban case before the U.S. Supreme Court. The question is whether they will get a consolation prize.

The central issue in the case, set for argument March 2, is whether the Constitution’s Second Amendment applies to state and local gun laws, in addition to those enacted by the federal government and District of Columbia. When the court in 2008 struck down D.C.’s handgun ban and declared that the Second Amendment protects individual rights, the five justices in the majority suggested the court eventually would bind states and cities.

How the court takes that step, known as “incorporation,” may prove as important as if it does so. Some gun-control groups are effectively conceding incorporation, instead asking the court to say that states and cities can still enact “reasonable” regulations. That might leave intact sales restrictions and bans on concealed weapons and particular types of guns.

“Given that the five justices who ruled against D.C. are still on the court, it’s going to be tough to flip any one of those votes,” said Paul Helmke, president of the Brady Center to Prevent Gun Violence in Washington. “We want to make sure that if Chicago loses that other gun laws that Chicago might adopt or other cities might adopt are upheld.”

Doctrinal Question

The case also presents a major doctrinal question. Advocates from across the ideological spectrum are asking the justices to forge a new path in incorporating the Second Amendment, relying on the long-dormant privileges-or-immunities clause of the 14th Amendment.

A decision relying on that provision would potentially create a new legal basis for a host of established constitutional rights, including abortion, and might provide the framework for stronger protections of property rights.

Chicago is now the only major U.S. city with a blanket prohibition on handguns. The ban is being challenged by four Chicago residents, including Otis McDonald, a 76-year-old homeowner in the Morgan Park neighborhood on the city’s South Side.

McDonald, who keeps a shotgun in his house, says he wants a handgun by his bed for protection. He says that his home has been broken into at least three times and that he was once accosted by three neighborhood youths after he called the police to report that one of them was brandishing a gun.

‘Gang-Bangers and Drug Dealers’

“We the law-abiding citizens are the ones who are being victimized by all the laws that are being devised,” said McDonald, a retired maintenance engineer who grew up in Louisiana as the son of sharecroppers. “These laws do nothing to the gang-bangers and drug dealers because their guns are gotten illegally anyway.”

Chicago Mayor Richard M. Daley said his city’s laws help reduce gun violence.

“People of all backgrounds and from every part of our nation — our mothers and fathers, brothers, sisters and children — needlessly lose their lives because guns are too easily available in our society,” he said in January.

The Second Amendment, like the rest of the Bill of Rights, was originally aimed only at the national government. Three times in the 19th century, the Supreme Court refused to apply the Second Amendment to the states.

More recently, the court has said that some, though not all, of the rights in the first eight amendments are so fundamental they are incorporated into the 14th Amendment’s due process clause, which binds the states. The established test is whether a right is “implicit in the concept of ordered liberty.”

‘Fundamental’ Right

Although the court didn’t resolve incorporation in its 2008 decision, Justice Antonin Scalia’s majority opinion referred to gun rights as “fundamental” and said the Second Amendment “codified a right inherited from our English ancestors.”

The lawyer for the Chicagoans, Alan Gura, said incorporation wouldn’t necessarily mean invalidation of less restrictive laws. “Most states have regimes regulating the carrying of guns that are perfectly constitutional,” Gura said.

Scalia’s opinion said the court wasn’t questioning laws barring handgun possession by convicted felons and the mentally ill or restrictions on bringing guns into schools or government buildings.

Gura is urging the court to invoke the privileges-or- immunities clause, which he says was designed to provide broad protections in the aftermath of the Civil War. The provision says that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

1873 Precedent

That provision was rendered all but meaningless in an 1873 Supreme Court decision known as The Slaughter-House Cases. That ruling has since come under academic criticism for eliminating the 14th Amendment’s most straightforward assertion of protected rights.

“The biggest thing restoring the privileges-or-immunities clause would do is make the Constitution make sense again,” said Doug Kendall, president of the Constitutional Accountability Center, a Washington-based advocate for civil rights, the environment and voting rights.

The potential ramifications worry some advocates of individual rights. Unlike other parts of the 14th Amendment, the privileges-or-immunities clause doesn’t protect non-citizens, says Lawrence Rosenthal, a professor at Chapman School of Law in Orange, California.

“In the immigrant community, there’s enormous concern over this theory,” he said.

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

–Editors: Jim Rubin, Max Berley.

View the original article here.