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Second Amendment

In 2008 in District of Columbia v. Heller, the Supreme Court ruled that Washington's ban on guns violated the Second Amendment guarantee of a right to bear arms.  The decision was notable in that for the first time the Court ruled that the right was not limited by the militia clause, that is, any individual and not just a citizen member of a militia, had the right to own a gun.  Since the Second Amendment, like other parts of the Bill of Rights, originally applied only to the federal government, the question immediately arose as to whether the Court would incorporate the Second Amendment, and like other provisions in the Bill of Rights, apply it to the states through the Due Process Clause of the Fourteenth Amendment. Advocates of the right to bear arms began looking for a test case, and in the fall the Court accepted McDonald v. Chicago. Like Washington, Chicago and its Oak Park suburb banned hand guns outright. Alan Gura, who argued and won the Heller case, also represented Chicago residents who opposed the city's gun laws, and he ran into a brick wall when he suggested that the Court should strike down the laws and incorporate the Second Amendment on the basis of the Privileges and Immunities Clause rather than on traditional due process grounds. Both conservatives as well as liberals jumped on him for that suggestion, and Justice Scalia asked why he was taking the more difficult path "unless you're bucking for some place on a law school faculty." Justices Ginsburg and Breyer also seemed worried about where that line of argument would lead.  The members of the Court seemed to breathe a sigh of relief when former Solicitor General Paul Clement, representing the National Rifle Association, rose to reassure the Court that the Due Process Clause was the way to go, and they did.

In a 5-4 ruling the Court held that all Americans have a right to bear arms, and that the Second Amendment applied to the states as well as to the federal government. Justice Samuel Alito, writing for the majority, said the right to self-defense protected by the Second Amendment was fundamental to the American conception of ordered liberty.

The most notable part of the majority opinion, however, was the assurance given that the decision did not mean that all measures controlling guns were unconstitutional. Alito said that the decision did not cast doubt on such long-standing measures as keeping felons and the mentally ill from possessing guns or keeping guns out of "sensitive places" such as schools and government buildings.  Despite Chicago's "doomsday proclamations," Alito wrote, the decisions "does not imperil every law regulating firearms."  In both the Washington and Chicago cases, the majority very carefully avoided saying what restrictions would be permissible, but reassuring state and local governments that the Court was not approving a situation in which anyone wanting a gun could get and use it. In fact, the Court did not even declare the Chicago measure unconstitutional, but sent it back to the lower court to decide whether such strict measures can be reconciled with the Second Amendment.

Justices Stevens and Breyer, joined by Ginsburg and Sotomayor, each dissented. Stevens said that unlike the Washington case, which had a very limited effect, the Chicago decision "could prove far more destructive—quite literally—to our nation's communities and to our constitutional structure." In opposition to the concurring opinions by Scalia and Thomas, who argued that history supported the decision, Justice Breyer noted that the historical record is far from clear, as are the conclusions that can be drawn from gun control laws.  But the evidence is clear, he declared, that 60,000 deaths and injuries result each year from firearms, and that Chicago's hand-gun ban had saved many hundreds of lives since it was enacted in 1983.

Within a week the Chicago City Council unanimously approved a tough new measure that bans gun shops in the city and prohibits gun owners from stepping outside their houses, even onto their porches or in their garages, with a handgun. The NRA immediately condemned the new ordinance, charging that the city wanted "to put as many hurdles and as much red tape in the way of someone who just wants to exercise their constitutional right to have a gun." New York mayor Michael Bloomberg, an ardent advocate of gun control, took a far more sanguine view of the decision, saying it still would keep guns out of the hands of criminals and terrorists "while at the same time respecting the constitutional rights of law-abiding citizens."

There is no question that at some point in the not too distant future the Court will have to deal with the extent to which local governments can control firearms short of an outright ban.  In the meantime the NRA and other gun advocates will challenge as many of these laws as possible, but neither federal nor state tribunals have much guidance from the Supreme Court. Justice Alito acknowledged that the decision might "lead to extensive and costly litigation," but said that was the price of protecting constitutional freedoms.



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