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Supreme Court Adds 12 Cases to Docket, Including a Second Amendment Sequel
The National Law Journal
October 01, 2009
The U.S. Supreme Court on Wednesday waded back into the contentious debate over the Second Amendment, agreeing to consider a Chicago case that will answer a question it left unanswered last year: whether the individual right to bear arms applies against state and local gun restrictions as well as federal.
The case, McDonald v. Chicago, could also intensify a debate within the Court and academia about the best way to apply or incorporate rights embodied in the U.S. Constitution to states. "This case is about a lot more than guns," said Doug Kendall of the Constitutional Accountability Center, a liberal group that favors incorporation of rights based on the privileges or immunities clause of the 14th Amendment.
Acting on pending petitions filed before and during its summer recess, the Court announced it would add 12 new cases to its argument docket, including the Chicago case, a sequel to the landmark D.C. v. Heller decision from June 2008. In Heller, the Court for the first time declared an individual right to bear arms. But because the case was from the District of Columbia, a federal enclave, the Court declined to rule whether the right also applies when states and localities enact restrictions on gun use.
The Chicago case was brought by residents who invoked Heller to challenge that city's long-standing ban on handgun registration, first enacted in 1982. The 7th U.S. Circuit Court of Appeals upheld the ban, refusing to apply Heller and citing 19th century Supreme Court precedents.
Gun-control supporters minimized the importance of the Court's action Wednesday. "Even if the Court rules that the right is incorporated, it may have surprisingly little impact," said Dennis Henigan, vice president of the Brady Center to Prevent Gun Violence. The reason, Henigan said, is that in the Heller decision, the Court emphasized that even though there is an individual right to bear arms, many restrictions that fall short of a total ban would be constitutional. In litigation since Heller, Henigan said, almost all challenges to gun laws and prosecutions have failed.
Representing the Chicago residents is Alan Gura of Gura & Possessky of Alexandria, Va., the upstart attorney who first mounted the District of Columbia challenge that resulted in the Heller decision. Gura will argue that the right to bear arms applies to state restrictions, not only because of the 14th Amendment's due process clause -- the traditional vehicle that has been used for applying other individual rights to the states -- but the privileges or immunities clause as well. That clause, which bars states from abridging "the privileges or immunities of citizens of the United States," has been viewed as a dead letter since the Court's Slaughterhouse Cases of 1873.
