Sunday, February 28, 2010

New York Times Editorial: The Second Amendment’s Reach/Gun case presents quandary for Supreme Court justices

New York Times Editorial: The Second Amendment’s Reach
Copyright by the New York Times
March 1, 2010
http://www.nytimes.com/2010/03/02/opinion/02tue1.html?ref=global



Two years ago, the Supreme Court struck down parts of the District of Columbia’s gun-control law. On Tuesday, the court will consider whether that decision should apply everywhere in the country, not just in the federal territory of the nation’s capital.

We disagreed strongly with the 2008 decision, which took an expansive and aggressive view of the right to bear arms. But there is an even broader issue at stake in the new case: The Supreme Court’s muddled history in applying the Constitution to states and cities. It should make clear that all of the protections of the Bill of Rights apply everywhere.

McDonald v. Chicago is a challenge to a law that makes it extremely difficult to own a handgun within Chicago’s city limits. The challengers rely on the court’s 5-to-4 ruling in 2008, which recognized an individual right under the Second Amendment to carry guns for self-defense. But that decision left open an important question. The Bill of Rights once was largely thought to be a set of limitations on the federal government. Does the right to bear arms apply against city and state governments as well?

Since states and localities do far more gun regulation than the federal government, the court’s answer will have a powerful impact. The United States Court of Appeals for the Seventh Circuit, in Chicago, relying on 19th-century precedents, ruled that the Second Amendment does not apply to states and cities.

Under the doctrine of “selective incorporation,” the Supreme Court has ruled on a case-by-case basis that most, but so far not quite all, of the Bill of Rights applies to states and cities. The court should dispense with the selectivity and make clear that states and cities must respect the Bill of Rights.

To justify incorporation, the court has relied on the 14th Amendment, which was enacted after the Civil War to ensure equality for newly freed slaves. The amendment has two relevant clauses: the due process clause that requires government to act with proper respect for the law, and the privileges or immunities clause, which is more focused on protecting substantive individual rights.

The logical part of the amendment to base incorporation on is the privileges or immunities clause, but a terrible 1873 Supreme Court ruling blocked that path and the court has relied since then on the due process clause.

A group of respected constitutional scholars and advocates is asking the court to switch to the privileges or immunities clause as the basis for applying the Bill of Rights to states and cities. That would be truer to the intent of the founders, and it could open the door to a more robust constitutional jurisprudence that would be more protective of individual rights.

It is unlikely that the court will delve directly into the gun issues. If it decides to apply the Second Amendment to cities, it would probably send the case back to a lower court to evaluate the Chicago law. If that happens, the justices should guide the court in a way that makes clear that reasonable gun restrictions will still be upheld.

The Supreme Court’s conservative majority has made clear that it is very concerned about the right to bear arms. There is another right, however, that should not get lost: the right of people, through their elected representatives, to adopt carefully drawn laws that protect them against other people’s guns.








Gun case presents quandary for Supreme Court justices
By Robert Barnes
Copyright by The Washington Post
Monday, March 1, 2010
http://www.washingtonpost.com/wp-dyn/content/article/2010/02/28/AR2010022803985.html?hpid=topnews



As a member of the Junior ROTC, teenager Antonin Scalia toted his rifle on the subway ride back and forth to Queens. As a hunter, he speaks lyrically of stalking wild turkeys. And as a justice, he may have reached the pinnacle of his more than two decades on the Supreme Court when he wrote the majority opinion that said the Second Amendment protects an individual's right to own a firearm.

But when the justices on Tuesday confront the question of whether the amendment applies to state and local governments -- not just the federal government and its enclaves, such as the District of Columbia -- the court's most prominent gun enthusiast faces something of a constitutional quandary.

The most likely path to recognizing gun ownership as a fundamental right is one that has been heavily criticized by Scalia and other conservative scholars, and it seems inconsistent with his belief that the Constitution should be interpreted in terms of its framers' "original meaning."

The alternative, one embraced by an unlikely coalition of libertarian, liberal and some conservative scholars and activists, would apply the Bill of Rights to the states in a way they say is more grounded in the Constitution. But it is also a route that could open what is invariably described as a Pandora's box of additional rights of citizenship -- health care, for instance, or housing.

The debate comes in McDonald v. Chicago, a case with great significance just on the gun-control front. A decision that states and cities may not infringe upon the right to own a firearm for self-defense could eventually call into question all manner of restrictions on gun ownership and registration, limits on who is eligible to own a gun and whether the carrying of weapons can be regulated.

On the surface, the issue would seem "easy as pie," as Scalia sometimes breezily dismisses constitutional decisions that cause other justices deep consternation. It is a challenge of handgun bans in Chicago and the suburb of Oak Park, Ill., that are nearly identical to Washington's restrictions struck by the court in 2008 in the landmark ruling District of Columbia v. Heller.

Most lawyers and scholars who follow the court think the cities have a losing hand; they say it is unlikely the five justices who made up the majority in Heller will decide that the right to own a firearm for self-protection exists only in a federal enclave. But the question of whether the Second Amendment applies to the states was specifically left unanswered in that case.

To most, it might seem illogical that the Bill of Rights would apply only to actions of the federal government, but that was its intent. Over the years, the court has said most of it applies -- or in the court's language is "incorporated" -- through the 14th Amendment.

That post-Civil War amendment was meant to protect rights and outlaw discrimination. It forbade states to pass laws that abridged "the privileges or immunities of citizens of the United States." It said states may not "deprive any person of life, liberty, or property, without due process of law" and guaranteed "equal protection of the laws."

Mostly, the justices have used the "due process" clause to incorporate the majority of the Bill of Rights. The National Rifle Association and others have urged the court to continue to use it to incorporate the Second Amendment.

Reviving another clause

But others, notably scholars from the liberal Constitutional Accountability Center and the libertarian Cato Institute, have urged the court to revive another clause from the 14th Amendment, the one that protects the "privileges or immunities of citizens of the United States" -- 19th-century-speak for "rights." An 1873 Supreme Court decision has buried the "privileges or immunities clause" by saying it covered only a narrow range of national rights, such as traveling to the capital.

The justices said in taking the McDonald case they would decide whether either clause incorporated the Second Amendment. And the exercise will provide interesting revelations.

The liberal dissenters in Heller will decide whether to continue their protest that the Second Amendment does not convey an individual right, or endorse Chicago's position that federalism requires gun control decisions to be left to the states.

Justice Clarence Thomas, Scalia's fellow originalist and another opponent of substantive due process, has signaled he is open to revisiting the privileges or immunities clause. And Justice Sonia Sotomayor, deemed by gun rights organizations as an enemy during her confirmation hearings despite a scant record on the subject, will be casting the first of what could be many votes on gun restrictions.

But Scalia's situation is particularly interesting.

He is unquestionably the court's most outspoken proponent of gun rights. He has lamented in speeches that gun ownership is too often linked with criminal behavior and his hunting trip with then-Vice President Cheney caused a national controversy. His love of the sport goes back to childhood, and he recently waxed about the challenge and allure of turkey hunting to journalist Joan Biskupic for her Scalia biography, "American Original."

"Turkeys are very wily creatures. They have superb eyesight and they're very cautious," Scalia said. "You get one shot. If you miss, the whole day's ruined."

Scalia has been equally lethal on the subject of the due-process clause, which the court has invoked to protect substantive liberties, such as abortion rights and private relations between homosexuals. He protested as recently as last spring, when the court ruled that large campaign contributions to a judge could violate the due process rights of someone who had a case before that court.

"Divinely inspired text may contain the answers to all earthly questions," Scalia wrote in dissent, "but the due process clause most assuredly does not."

Such statements give heart to Doug Kendall of the Constitutional Accountability Center. "Justice Scalia has made a career out of promoting originalism and attacking substantive due process," Kendall said. "How can he possibly embrace the due-process clause when originalism points so overwhelmingly to the privileges-or-immunities clause?"

Kendall's group has submitted a brief that brings together constitutional theorists across the board, such as liberal Jack Balkin of Yale Law School and conservative Steven Calabresi of Northwestern, one of the founders of the Federalist Society. Alan Gura, the Alexandria lawyer who won the Heller case and represents the city residents and gun rights challengers in the current case, stresses the privileges or immunities clause as the proper place to locate Second Amendment rights.

'Rooted in history'


But even Calabresi notes that Scalia can justify recognizing the right under the due-process clause as one "deeply rooted in history and tradition." Scalia has described himself at times as a "faint-hearted originalist," and has said even mistaken doctrines of the court should be left in place when they are widely accepted and relied upon.

The NRA's brief notes that relying on the due process clause in this case would allow the court to avoid overruling several previous decisions. And it references Scalia's dissent from 1993 that says he is "willing to accept the proposition that the Due Process Clause of the Fourteenth Amendment, despite its textual limitation to procedure, incorporates certain substantive guarantees specified in the Bill of Rights."

In a speech to Yale law students in 1996, Scalia was apparently more colorful, but no more conclusive. The idea of substantive due process was "babble," Scalia said, according to one report. On the other hand, the privileges-or-immunities clause was "flotsam," he said.

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