Justices Lean to Extending Gun Owners' Rights

By USA Today, USA Today - March 3, 2010

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.

Several key justices, including Anthony Kennedy, signaled they believe the right to firearms is sufficiently "fundamental" that it should cover people challenging state and local gun laws, as well as federal laws.

Such a decision expanding the reach of the Second Amendment likely would set off new rounds of lawsuits targeting specific regulations across the country.

Tuesday's arguments in a dispute over a Chicago handgun ban flowed from a 2008 ruling in which the Supreme Court said for the first time that the Second Amendment protects an individual's right. The prevailing judicial view had been that it covers a collective right of state militia, such as a National Guard.

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That 2008 case, District of Columbia v. Heller, applied only to laws by the U.S. government and its federal enclaves, such as Washington. Tuesday's case tested whether the right to bear arms is so fundamental to liberty that it also protects people against state and local laws.

The city of Chicago says the answer is no and that the Second Amendment significantly differs from other constitutional provisions because it is associated with dangerous weapons.

Justice Kennedy, who was in the majority in the 5-4 ruling in 2008 and is often a swing vote, said, "If (the right to bear arms) is not fundamental, then Heller is wrong." Kennedy said he believed the 2008 case rested on individuals' fundamental right to firearms.

Chief Justice John Roberts agreed, saying, "I don't see how you can read Heller and not take away from it the notion that the Second Amendment, whether you want to label it fundamental or not, was extremely important to the framers (of the Constitution) in their view of what liberty meant."

Justice Stephen Breyer, who dissented in Heller, was most vigorous in asserting that the Second Amendment should not be accorded the same status as other rights. "We are starting with a difference in purposes at the least," he said, suggesting that the right to weapons cannot be equated with free speech, for example. "Even if (city officials) are saving hundreds of lives, they cannot ban (guns)?" Breyer asked, skeptically.

Justice John Paul Stevens, who also dissented in Heller, suggested by his questions that the Second Amendment right should be limited in the states and that local legislators should have wide latitude to curtail firearms.

Chicagoans challenging the handgun ban include Otis McDonald, who lives on the city's far South Side and says he wants a handgun to protect his family.

Virginia lawyer Alan Gura, who was the lead lawyer in the 2008 case and represents McDonald, spent most of his time Tuesday arguing for specific legal grounds on which the Second Amendment would extend to states.

The Supreme Court has "incorporated" most of the first 10 amendments to the Constitution — the Bill of Rights — to apply to the states through a provision of the 14th Amendment that says no state shall infringe on "life, liberty or property without due process of law."

Yet Gura argued the court should extend the Second Amendment through a separate clause that says, "No state shall … abridge the privileges or immunities of citizens of the United States." His rationale, which would reverse past court rulings, received a chilly reception from many of the justices, including Antonin Scalia. Gura said in his brief that such grounds would "honor the 14th Amendment's true meaning."

Paul Clement, a former U.S. solicitor general under President George W. Bush, represented the National Rifle Association and urged the justices to rely on the 14th Amendment's due process guarantee for broader gun rights.

Defending Chicago's handgun ban, lawyer James Feldman said the right to bear arms is not fundamental, as is the right of free speech or free religious exercise. "Firearms, unlike anything else that is a subject of the Bill of Rights, are designed to injure or kill," he said.

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