Civil and Human Rights

Local Gun Laws Reviewed: U.S. Supreme Court Overview


Sept. 30 (Bloomberg) — The U.S. Supreme Court agreed to decide whether the constitutional right to bear arms, which already restricts federal gun-control laws, also applies to states and cities.

The justices today said they will resolve a politically charged question they left open in 2008 when they declared in a 5-4 vote that the Constitution’s Second Amendment protects individual rights. The new case stems from a challenge by local residents to a handgun ban in Chicago.

The question for the court is whether the 14th Amendment, enacted in the aftermath of the Civil War, extended the Constitution’s gun rights provision to protect against infringement by state and local officials.

“The rampant violation of the right to keep and bear arms was understood to be among the chief evils vitiated by adoption of the 14th Amendment,” Chicago residents led by Otis McDonald argued in their appeal.

Like the rest of the Bill of Rights, the Second Amendment was originally aimed only at the federal government. The Supreme Court on three occasions in the 19th century 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 that they are “incorporated” into the 14th Amendment’s due process clause, which binds the states. The court has said the test is whether a right is “implicit in the concept of ordered liberty.”

Self-Defense Right

Chicago officials contend that, at most, states should be bound by a constitutional right to self-defense, not the broader guarantee laid out in the high court’s 2008 District of Columbia v. Heller decision. TheHeller majority said the Second Amendment covered weapons in “common use.”

“To the extent that the Second Amendment embraces a broader right to weapons in common use, whether or not they are necessary to self-defense, that broader right should not be incorporated,” Chicago argued. The city permits ownership of rifles and shotguns.

Thirty-four states joined briefs urging the high court to intervene and declare that the Second Amendment applies to states.

The issue of Second Amendment incorporation played a role in this year’s confirmation debate over Sonia Sotomayor, the court’s newest justice. Serving on an appeals court panel, Sotomayor voted not to apply the Second Amendment to the states. Like the federal appeals court in the Illinois case, the Sotomayor panel said the Supreme Court should be the one to overturn its own precedents.

New Front

A decision extending the Second Amendment to the states would open a new front in the fight over gun rights, ensuring courtroom battles over the constitutionality of weapons restrictions around the country.

The high court’s 2008 District of Columbia v. Heller decision said the right to bear arms “is not unlimited.” The majority said the ruling didn’t cast doubt on laws barring handgun possession by convicted felons and the mentally ill or restrictions on bringing guns into schools or government buildings.

“Those gun laws that make sense and have an obvious public safety benefit will survive,” said Alan Gura, the lawyer for the Chicago residents challenging the ban. Laws “that are designed to harass gun owners will not survive.”

Gura said he isn’t aware of any cities other than Chicago and its Oak Park suburb that ban handguns.

The Chicago case “is unlikely to have much practical impact on most gun laws regardless of how the court rules,” Paul Helmke, president of the Brady Center to Prevent Gun Violence, said in a statement. He said the Heller ruling protected only “guns in the home for self-defense.”

Privileges and Immunities

At the same time, the case might usher in a major doctrinal shift for the high court and its application of constitutional rights to the states. Opponents of the gun restrictions are also asking the court to incorporate the Second Amendment through a different part of the 14th Amendment, the privileges and immunities clause.

That provision was all but eviscerated in an 1873 Supreme Court ruling that in recent years has come under academic criticism across the ideological spectrum.

Yale law professor Akhil Reed Amar wrote in a 2001 law review article that “virtually no serious modern scholar – left, right and center – thinks this is a plausible reading of the amendment.”

The National Rifle Association also challenged the Chicago handgun ban, as well the one in neighboring Oak Park. The justices today opted to consider only the Chicago residents’ appeal, not a similar one by the NRA.

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

New Cases

The case was one of 10 the high court accepted for review today as it got a head start on the formal beginning of its term next week. The court also:

– Said it will rule on the validity of parts of the 2001 Patriot Act that target supporters of terrorist groups, accepting appeals from the Obama administration and human rights groups.

– Agreed to use a case involving Chicago firefighters to clarify deadlines for workers to challenge hiring or promotion tests as discriminatory.

– Agreed to decide whether the Foreign Sovereign Immunities Act shields former government officials for acts they took in an official capacity. The court will hear arguments from former Somali prime minister Mohamed Ali Samantar, who is fighting a lawsuit by people who say they were tortured.


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