Justices to Consider Whether State Gun Laws Violate Second Amendment

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By Robert Barnes
Washington Post Staff Writer
Thursday, October 1, 2009

The Supreme Court set up a historic decision on gun control Wednesday, saying it will rule on whether restrictive state and local laws violate the Second Amendment right to gun ownership that it recognized last year.

The landmark 2008 decision to strike down the District of Columbia's ban on handgun possession was the first time the court had said the amendment grants an individual right to own a gun for self-defense. But the 5 to 4 opinion in District of Columbia v. Heller did not address the question of whether the Second Amendment extends beyond the federal government and federal enclaves such as Washington.

Most court observers say they think that the five justices who recognized the individual right will also find that the Second Amendment applies to state and local governments, a move that could spark challenges of state and local laws governing gun registration, how and when the weapons can be carried, and storage requirements.

The court will hear a challenge of handgun laws in Chicago and the neighboring village of Oak Park, Ill. It was filed by Alexandria lawyer Alan Gura, who successfully argued the Heller case. He said the Chicago ban is "identical" to the one found unconstitutional in the District.

The announcement came as the court prepared for its new term, which will officially begin on Monday. Justices sifted through more than 2,000 petitions accumulated through the summer and selected 10 to hear.

Also on the list was an examination of an anti-terrorism statute, widely used by federal prosecutors, that bans material support to groups that the State Department designates as terrorist organizations.

Solicitor General Elena Kagan told the court that the law is a "vital part of the nation's effort to fight international terrorism," but a lower court said some of the statute was unconstitutionally vague.

The decision to accept the Chicago gun case was a natural progression from the decision in

Heller, which split the court on ideological grounds. The liberal justices said the Second Amendment guaranteed only a collective right for gun ownership to maintain militias.

If the amendment is extended, the next question will be about the kind of restrictions allowed. The Heller opinion by Justice Antonin Scalia said some requirements would be constitutional, but it was not specific.

Gura hopes for a "definitive ruling" on Chicago's restrictions and said he thinks that at a minimum the court would strike the same kind of handgun ban it found objectionable in Washington.

But gun-control advocates played down the importance of the case, saying few states or municipalities had such restrictive laws. Only a handful of states do not protect gun ownership in their constitutions, and 33 filed a brief advocating that the court find that the Second Amendment applies to them.

"Even if the court were to hold the Second Amendment applicable to states and localities, such a ruling is unlikely to change the crucial holding by the Supreme Court in Heller that a wide range of reasonable gun laws are presumptively constitutional, and that the Second Amendment right is narrowly limited to guns in the home for self-defense," said Paul Helmke, president of the Brady Campaign to Prevent Gun Violence.

The method by which the court might apply the Second Amendment is what interests constitutional scholars. The Bill of Rights originally was thought to be a restriction on the federal government, a perception furthered by a 19th-century court ruling that differentiated between state and federal rights.

Since then, the court has gradually applied most of the 10 amendments to the states in a process called "incorporation," but not the Second Amendment.

Gura is supported by liberal and conservative scholars who say the issue should be taken care of by the post-Civil War 14th Amendment, which says a state may not "abridge the privileges and immunities" of citizens nor deprive liberty "without due process of law."

Clark Neily, a senior lawyer at the conservative Institute for Justice, said in a statement: "This case is about more than guns -- it is about whether the Supreme Court should interpret the Constitution as the powerful protection of liberty it was intended to be. His organization sees the "privileges and immunities" clause as a protector of "economic liberty" and "armed self-defense."

Liberal scholars such as Doug Kendall of the Constitutional Accountability Center consider the clause an "explicit protection for substantive liberty that would reinforce the constitutional underpinnings of Roe v. Wade and the court's ruling protecting sexual autonomy for gays and lesbians."

Justice Sonia Sotomayor was part of a panel on the U.S. Court of Appeals for the 2nd Circuit that said in an unrelated case that only the Supreme Court could decide whether the Second Amendment applies beyond the federal confines. Because the court accepted the case from the U.S. Court of Appeals for the 7th Circuit, she is free to participate.

The case is McDonald v. Chicago. The earliest it would be argued is Jan. 11.

The anti-terrorism case challenges part of the federal law that makes it a crime to provide material support or resources to designated terrorist groups. In this case, it was the Kurdistan Workers Party in Turkey and the Tamil Tigers in Sri Lanka. The groups and individuals who challenged the law said they were aiding in lawful, nonviolent activities such as petitioning the United Nations for relief aid or trying to organize peace agreements.

The challenge says terms such as "expert advice" and "training" are too vague and describe speech rather than conduct.

But the government argues that the law is necessary to combat aid to terrorist groups. About 120 defendants have been charged with providing material support, and 60 have been convicted, the government's brief said. The case is Holder v. Humanitarian Law Project.


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