The Supreme Court suggested Tuesday it will strike down U.S. cities’ outright bans on handguns, a ruling that could establish a nationwide ownership right fervently sought by gun advocates. But the justices indicated less severe limits could survive, continuing disputes over the “right to keep and bear arms.”
Chicago area residents who want handguns for protection in their homes are asking the court to extend its 2008 decision in support of gun rights in Washington, D.C., to state and local laws.
Such a ruling would firmly establish a right that has been the subject of politically charged and often fierce debate for decades. But it also would ensure years of legal challenges to sort out exactly which restrictions may stand and which must fall.
Indeed, the outcome of the Washington lawsuit in 2008 already has spawned hundreds of court challenges, including one in Massachusetts over a state law requiring gun owners to lock weapons in their homes.
Two years ago, the court announced that the Constitution’s Second Amendment protects an individual’s right to possess guns, at least for self-defense in the home.
That ruling applied only to federal laws and struck down a ban on handguns and trigger lock requirement for other guns in Washington, a city with unique federal status. At the same time, the court was careful not to cast doubt on other regulations of firearms.
The court already has said that most of the guarantees in the Bill of Rights serve as a check on state and local laws. Still, “states have substantial latitude and ample authority to impose reasonable regulations,” said Justice Anthony Kennedy, who was among the majority in the 2008 decision.
“Why can’t we do the same thing with firearms?” he asked.
Alan Gura, the lawyer who represents the Chicago challengers, also has filed a new suit against Washington over the city’s prohibition on carrying loaded weapons outside the home.
The justices themselves acknowledged that only through future lawsuits would the precise contours of the constitutional gun right be established. “We haven’t said anything about what the content of the Second Amendment is beyond what was said in Heller,” Chief Justice John Roberts said, using the name of the Washington resident who challenged the city’s ban.
Roberts and the four other justices who made up the majority in the Washington case remain on the court, so it would not be a surprise to see them extend the Second Amendment’s reach to the states.
Still, James Feldman, a Washington-based lawyer representing the city of Chicago, urged the court to reject the challenges to the gun laws in that city and its suburb of Oak Park, Ill. Handguns have been banned in those two places for nearly 30 years, although they appear to be the last two remaining jurisdictions with outright bans, according to the Brady Center to Prevent Gun Violence.
Feldman ran into difficulty with several justices who formed the majority in 2008 — the ruling’s author Antonin Scalia, Samuel Alito, Clarence Thomas, Kennedy and Roberts. Only Thomas asked no questions, as is his custom during argument.
Even those who were not in the 2008 majority appeared to recognize that some extension, or incorporation as it is called, of the Second Amendment is likely. “Would you be happy if we incorporated it and said reasonable regulation is part of the incorporation?” asked Justice Sonia Sotomayor, who only joined the court last year.
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, which was 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 sex.
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.”
Gura 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 United States.”
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 school faculty?”
Gura assured the court he was not in search of a job.
A decision is expected by the end of June.
The case is McDonald v. Chicago, 08-1521.