Posted: Mar 2, 2010 4:09 PM by Rob Kirkpatrick
Updated: Mar 2, 2010 4:09 PM
Which way should the Supreme Court side? Some say Chicago is violating the 2nd amendment, which allows you to keep and bear arms. Others say the ban on handguns is saving lives. Should individual states and cities have the right to ban guns despite what the constitution says. What rights do you feel are being violated as a result of this law? Do you agree or disagree with this plan?
WASHINGTON (AP) - The Supreme Court appeared willing Tuesday to
say that the Constitution's right to possess guns limits state and
local regulation of firearms. But the justices also suggested that
some gun control measures might not be affected.
The court heard arguments in a case that challenges handgun bans
in the Chicago area by asking the high court to extend to state and
local jurisdictions the sweep of its 2008 decision striking down a
gun ban in the federal enclave of Washington, D.C.
The biggest questions before the court seemed to be how, rather
than whether, to issue such a ruling and whether some regulation of
firearms could survive. On the latter point, Justice Antonin Scalia
said the majority opinion he wrote in the 2008 case "said as
The extent of gun rights are "still going to be subject to the
political process," said Chief Justice John Roberts, who was in
the majority in 2008.
At the very least, Tuesday's argument suggested that courts
could be very busy in the years ahead determining precisely which
gun laws are allowed under the Second Amendment's "right to keep
and bear arms," and which must be stricken.
James Feldman, a Washington-based lawyer representing Chicago,
urged the court to reject the challenges to the gun laws in Chicago
and its suburb of Oak Park, Ill. Handguns have been banned in those
two places for nearly 30 years.
The court has held that most of the rest of the Bill of Rights
applies to state and local laws. But Feldman said the Second
Amendment should be treated differently because guns are different.
"Firearms are designed to injure and kill," he said.
But Feldman ran into difficulty with some of the five justices
who formed the majority in 2008. Justice Anthony Kennedy, who
joined Scalia's opinion two years ago, said it seemed to him that
Feldman was arguing that the court got it wrong two years ago.
Kennedy said other constitutional provisions have been applied,
or "incorporated," against the states without stripping them of
the authority to impose reasonable regulations. "Why can't we do
the same thing with firearms?" he asked.
Of the other two justices in the majority then, Justice Samuel
Alito also appeared to agree that the Second Amendment should be
extended to state and local laws and Justice Clarence Thomas said
nothing, as is his custom during argument.
Tuesday's statements from the court also left little doubt that
it would not break new ground in how it might apply the Second
Amendment to states and cities.
As in earlier cases applying parts of the Bill of Rights to the
states, the justices suggested they use the due process clause of
the 14th Amendment, passed in the wake of the Civil War, to ensure
the rights of newly freed slaves.
The court has relied on that same clause - "no state shall
deprive any person of life, liberty or property without due process
of law" - in cases that established a woman's right to an abortion
and knocked down state laws against interracial marriage and gay
This is the approach the National Rifle Association favors.
For years, Scalia has complained about the use of the due
process clause. But Tuesday he said, "As much as I think it's
wrong, even I have acquiesced in it."
Alan Gura, the lawyer for the Chicago residents challenging the
statute, urged the court to employ another part of the 14th
amendment, forbidding a state to make or enforce any law "which
shall abridge the privileges or immunities of citizens of the
They argue this clause was intended as a broad guarantee of the
civil rights of the former slaves, but that a Supreme Court
decision in 1873 effectively blocked its use.
Breathing new life into the "privileges or immunities" clause
might allow for new arguments to shore up other rights, including
abortion and property rights, liberal and conservative legal
scholars have said.
But why use that approach, calling for overturning 140 years of
law, Scalia said, "unless you're bucking for a place on some law
Gura assured the court he is not in search of a job.
A decision is expected by the end of June.
The case is McDonald v. Chicago, 08-1521.