Analysis

The Supreme Court on Tuesday seemed poised to require state and local governments to obey the Second Amendment guarantee of a personal right to a gun, but with perhaps considerable authority to regulate that right.  The dominant sentiment on the Court was to extend the Amendment beyond the federal level, based on the 14th Amendment’s guarantee of “due process,” since doing so through another part of the 14th Amendment would raise too many questions about what other rights might emerge.

When the Justices cast their first vote after starting later this week to discuss where to go from here, it appeared that the focus of debate will be how extensive a “right to keep and bear arms” should be spelled out: would it be only some “core right” to have a gun for personal safety, or would it include every variation of that right that could emerge in the future as courts decide specific cases? The liberal wing of the Court appeared to be making a determined effort to hold the expanded Amendment in check, but even the conservatives open to applying the Second Amendment to states, counties and cities seemed ready to concede some — but perhaps fewer — limitations. The eagerly awaited oral argument in McDonald, et al., v. Chicago, et al. (08-1521) found all members of the Court actively involved except the usually silent Justice Clarence Thomas.  And, while no one said that the issue of “incorporating” the Second Amendment into the 14th Amendment had already been decided before the argument had even begun, the clear impression was that the Court majority was at least sentimentally in favor of that, with only the dimensions of the expansion to be worked out in this case and in a string of likely precedents coming as time went on.

An attempt by an attorney for the cities of Chicago and Oak Park, Ill., defending local bans on handguns in those communities, to prevent any application of the constitutional gun right to states, counties and cities looked forlorn and even doomed.  The nub of that argument by James A. Feldman of Washington was that, unlike other constitutional rights that the Court has extended to the state and local level, the right to a gun recognized by the Court two years ago in District of Columbia v. Heller pitted the threat that guns pose to human lives against a constitutional right, so the balance should be struck differently.  So far as the hearing Tuesday showed, Justice Stephen G. Breyer was the only member of the Court attracted to that approach.

Justice Breyer drew only thinly veiled ridicule from conservatives on the Court when he suggested that there be a constitutional “chart” drawn up to rank the higher and lower priorities of rights that would be protected against state and local infringement — perhaps the highest rank safeguarding the right to have a gun in community self-defense (as with a “militia”) but with a decidedly lower rank for a right to “shoot burglars.”  While that idea drew no support, the notion that the Second Amendment right restricting state and local gun laws would not be an absolute right had significant appeal, it appeared.

The first argument to collapse as the hearing unfolded was the plea by the lawyer for gun rights advocates, Alan Gura of Alexandria, Virginia, that the Court should “incorporate” the Second Amendment into the 14th Amendment through the “privileges or immunities” clause.   In the first comment from the bench after Gura had barely opened, Chief Justice John G. Roberts, Jr., noted that the Court had essentially scuttled that argument with its ruling in the SlaughterHouse Cases in 1873.  And within a few minutes, Justice Antonin Scalia — the author of the Heller opinion and the Court’s most fervent gun enthusiast — was sarcastically dismissing the “privileges or immunities” argument.

“Why,” Scalia asked Gura, “are you asking us to overrule 140 years of prior law….unless you are bucking for a place on some law school faculty.”  The Justice said the “privileges or immunities” argument was “the darling of the professorate” but wondered why Gura would “undertake that burden.”  And Scalia noted that the “due process” clause — an open-ended provision that he has strongly attacked on other occasions–  was available as the vehicle for incorporation, and added: “Even I have acquiesced in that.”   Gura somewhat meekly said “we would be extremely happy:” if the Court used the “due process” clause to extend the Second Amendment’s reach.

Justice Ruth Bader Ginsburg, one of the dissenters in Heller, then moved in to press Gura on just what “unenumerated rights” would be protected if the Court were to revive the “privileges or immunities” clause. It was a theme that would recur often thereafter, solidifying the appearance that the argument had virtually no chance of succeeding.  (In fact, when Gura near the end of the argument returned to the podium for his rebuttal, his time was used up by Justices Ginsburg and Anthony M. Kennedy exploring what other rights might come into being if the Court gave new life to the “privileges or immunities” clause.  He responded that he could not provide a full list, to which Justice Scalia retorted: “Doesn’ t that trouble you?”  It was obvious that it troubled the Court.)

When Gura’s argument moved on to the general question of “incorporation” of the Second Amendment, Justice John Paul Stevens explored whether such an extension would “apply to all of the Second Amendment” — including any court interpretations that ensued — or only “a homeowner’s right to protect against intruders in the home” — the specific right that Heller recognized.  Gura responded that the Second Amendment “was not so limited.”  Stevens then asked whether the right would include “a right to parade around in the streets with a gun.”  Gura said that the states and cities would have to obey a right that was fully equal to all rights embraced by the right to keep and bear arms.

Justice Kennedy soon joined in that exchange, and asked whether “incorporation” would embrace “all of the refinements” that courts would make in interpreting the right, or “just the core of the right.” Gura left no doubt that gun rights advocates were seeking the full panoply of whatever gun rights the Amendment were found to cover.

The remainder of Gura’s time was spent amid an exchange between Breyer and Scalia over whether courts should give the Second Amendment lesser scope based on statistics about the social cost that would result in people killed from others’ use of gun rights.   Gura was essentially a bystander as the two Justices jousted over that issue.

The Court then got the focus that a majority seemed to be hoping for: a full-scale plea, by former Solicitor General Paul D. Clement, to use the “due process clause” as the vehicle for extending gun rights to the state and local level.  And it was during Clement’s time at the podium that the Court’s liberal bloc began making a case — which Clement essentially resisted — to limit the “incorporated” right to, at most, some core guarantee, without all of the variations that would later develop.  Clement noted that there were “not a lot” of variations of the gun right yet, since Heller was the only precedent so far, and that was limited to gun rights for self-defense in the home.

Clement, however, said that the Court should allow a “carryover” into the 14th Amendment of all of the jurisprudence that develops on the Second Amendment’s scope.  There should not be a Second Amendment right and then a mere “shadow” of it that applied to state and local government, he argued.  He did concede, though, that constitutional gun rights might be allowed to develop differently at the state and local level than at the federal level.  But that, he said, is different from creating only a “shadow” right applied to state and local laws.

The Court’s strong leanings in the case became even more evident during questioning of Feldman, the lawyer for the two cities involved in the case.  Although he absolutely needs the vote of Justice Kennedy if his plea is to prevail, he almost immediately frustrated Kennedy by arguing that gun rights were not an essential attribute of “ordered liberty,” thus questioning whether such rights qualify as fundamental.  If they are not, Kennedy shot back, then the Heller decision was wrongly decided.   And Chief Justice Roberts told Feldman that there was no way to read the Heller opinion to make the Second Amendment seem a less important right.

Tellingly, however, the Chief Justice commented that “we haven’t said anything about what the content of the Second Amendment is,” so that, over time, it may develop that state and local governments may well be allowed to impose restrictions, such as bans on carrying concealed weapons.  And Scalia reminded Feldman that the Court in the Heller decision had left room for some regulation of guns even though the Second Amendment now embraced a personal right to have a gun.  Kennedy also noted that “there are provisions of the Constitution” that allow states to have “significant latitude” in regulating what those provisions seek to protect.

Feldman made no headway with an argument that state and local political processes should be left to develop gun control policy, unimpeded by the Second Amendment or its equivalent.  Some cities, he said, might conclude that “a ban on handguns is the best way to protect people,” and yet Heller says that the Second Amendment forbids such a ban.  That was, in essence, a total rejection of the idea of “incorporation,” and it was by then more than evident that there was no majority for such a rejection.   He also scored no points with a complaint that “incorporation” of the Second Amendment would go a long way toward establishing a national constitutional right of “self-defense,” which he said the Court has never mandated and should not now.  For 200 years, he said, it has been up to state and local government to sort out when self-defense was justified.  No member of the Court seemed persuaded that that was now at stake in the Second Amendment context.