In its second major ruling on gun rights in three years, the Supreme Court Monday extended the federally protected right to keep and bear arms to all 50 states. The decision will be hailed by gun rights advocates and comes over the opposition of gun control groups, the city of Chicago and four justices.
Justice Samuel Alito wrote for the five justice majority saying “the right to keep and bear arms must be regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner.”
The ruling builds upon the Court’s 2008 decision in D.C. v. Heller that invalidated the handgun ban in the nation’s capital. More importantly, that decision held that the Second Amendment right to keep and bear arms was a right the Founders specifically delegated to individuals. The justices affirmed that decision and extended its reach to the 50 states. Today’s ruling also invalidates Chicago’s handgun ban.
Backgrounder:
WASHINGTON — The Supreme Court appears poised to issue a ruling that will expand to the states the high court’s historic 2008 ruling that individuals have a federally protected right to keep and bear arms, following an hour-long argument Tuesday. If so, the decision would mark another hallmark victory for gun rights advocates and likely strike down Chicago’s handgun ban that is similar to the Washington D.C. law already invalidated by the justices.
Tuesday’s lively arguments featured lawyer Alan Gura, the same man who argued and won D.C. v. Heller in 2008. He now represents Otis McDonald who believes Chicago’s handgun ban doesn’t allow him to adequately protect himself. Gura argued the Heller decision which only applied to Washington D.C. and other areas of federal control should equally apply to Chicago and the rest of the country.
“In 1868, our nation made a promise to the McDonald family that they and their descendants would henceforth be American citizens, and with American citizenship came the guarantee enshrined in our Constitution that no State could make or enforce any law which shall abridge the privileges or immunities of American citizenship,” Gura told the Court.
He argued the language of the Constitution’s 14th Amendment forces the states to protect the rights guaranteed by the Second Amendment. The Bill of Rights, which was adopted in the late 18th Century, was then commonly viewed as only offering protections from the federal government.
It wasn’t until after the Civil War that the Supreme Court in a piecemeal fashion began to apply–or incorporate–parts of the Bill of Rights to the states. It has used the 14th Amendment’s Due Process Clause to incorporate most of the Constitution’s first amendments but has not yet done so for the Second Amendment. Gura argued that another part of the 14th Amendment would be a better vehicle for the justices to make their ruling but there didn’t appear to be enough support from the bench on that front.
Chief Justice John Roberts was the most vocal advocate of using the Due Process Clause to extend the Second Amendment rights to the states. “I don’t see how you can read — I don’t see how you can read Heller and not take away from it the notion that the Second Amendment…was extremely important to the framers in their view of what liberty meant.”
The discussion over “liberty” was a major philosophical theme of the arguments. Gura and National Rifle Association lawyer Paul Clement argued that the rights articulated in the Second Amendment are fundamental freedoms and would exist to all Americans even if there was no law specifically saying so.
James Feldman, lawyer for the City of Chicago, defended his city’s handgun ban and argued why the Heller decision’s Second Amendment guarantee doesn’t comport with the view that it represents a vital protection of liberty that needs to be expanded to the states.
“[T]he right it protects is not implicit in the concept of ordered liberty,” Feldman said. “States and local governments have been the primary locus of firearms regulation in this country for the last 220 years. Firearms unlike anything else that is the subject of a provision of the Bill of Rights are designed to injure and kill.”
Justice Ruth Bader Ginsburg dissented in Heller and wondered why the right to bear arms was necessary to extend to the states. “[I]f the notion is that these are principles that any free society would adopt, well, a lot of free societies have rejected the right to keep and bear arms.”
Later in the arguments Roberts disputed that notion. “I do think the focus is our system of ordered liberty, not any abstract system of ordered liberty. You can say Japan is a free country, but it doesn’t have the right to trial by — by jury.”
Roberts was part of the five member majority in Heller and there’s a good chance Tuesday’s case will result in a similar 5-4 outcome. All of the members of the Heller majority are still on the Court and at least one of them would have to rule against extending the Second Amendment protection in order for the opposing side to prevail.