Justices arm themselves with activism in Chicago gun ban case

By Dana Milbank
Wednesday, March 3, 2010; A02

It's about to get easier to shoot people in Chicago.

Actually, it's about to get easier to shoot -- and be shot by -- people in the rest of the country, too.

The robed ones on the Supreme Court left no doubt about that Tuesday morning, making clear that they will strike down the 28-year-old ban on handguns in Al Capone's town. The only questions are: Which legal theory will the pro-gun majority use to arrive at the outcome it desires, and which class of arms -- machine guns, perhaps? -- will it allow Americans to bear next?

The outcome was preordained since the Heller decision in 2008 struck down a similar ban in D.C. Chief Justice John Roberts told James Feldman, Chicago's attorney, that the five-member conservative majority in that case knew just what the Founding Fathers had in mind more than 200 years ago.

"I don't see how you can read Heller and not take away from it the notion that the Second Amendment, whether you want to label it fundamental or not, was extremely important to the framers in their view of what liberty meant," Roberts said.

Feldman, who had the unenviable task of arguing a case that had apparently been decided against him before he opened his mouth, tried gamely to argue that "the reason it was put in the Bill of Rights was because the framers were concerned about the federal government disarming the militia."

Justice Antonin Scalia, who wrote the Heller decision, had a simple response to that: So what? "That may be the reason it was put there. But it was put there. . . . And if it's there, it doesn't seem to me to make any difference why they chose to put that one there."

Those were some rather immodest pronouncements from two jurists who have long claimed the mantle of judicial modesty. Since the founding of the republic, gun laws have been determined by state and local authorities. But now a majority of the court is preparing to take the issue away from state legislators and put it in the hands of unelected judges -- the very definition of judicial activism.

Justice Stephen Breyer needled the majority about its rather situational view of federalism when it comes to "incorporating" the Second Amendment to make it binding on states rather than just the federal government. "Without incorporation, it's decided by state legislatures," he said. "With, it's decided by federal judges."

The justices don't often tip their hands during oral arguments, but after this one, both sides acted as though the court had already issued the order. On the plaza outside, the National Rifle Association's Wayne LaPierre spoke about victory and the Brady Center's Paul Helmke discussed the consequences of defeat.

Moments earlier, Feldman, arguing to keep the Chicago ban, was often reduced to stammering as the justices hectored him. Asked at one point by Justice Anthony Kennedy to provide a precedent, Feldman acknowledged: "I cannot offhand think of a case."

The justices were in spirited form as they debated this core constitutional issue among themselves, more than with the lawyers before them. Breyer spoke about the 18th-century English theorist William Blackstone. Justice John Paul Stevens invoked Justice John Marshall Harlan II.

At one point, Roberts asked one of the lawyers: "That's how you think Madison went about his job?"

Before the lawyer could answer, Breyer did. "He did, actually. He did. That's how he went about it."

"I'm asking counsel," Roberts informed Breyer. Breyer then penned a note that was passed to Roberts; the chief justice read it and chuckled.

The dispute was over the 14th Amendment, from 1868, which says states can't "abridge the privileges or immunities" of citizens, or deprive them of life, liberty or property "without due process of law."

The amendment had to do with Reconstruction race laws, but gradually, courts have expanded the 14th Amendment's reach. It's the sort of elastic, "living Constitution" phenomenon that conservatives often deplore, but in this case, they were happy to embrace the practice.

Alan Gura, the lawyer challenging the Chicago law, began by telling the justices that they should overturn an 1873 precedent that was "simply not decided correctly." That suggested the justices of 2010 know more about the 1868 amendment than the justices of 1873, and it went too far even for Scalia, who said Gura was "bucking for a place on some law school faculty."

Scalia offered a simpler way for the gun-rights lawyers to prevail, by using the "due process clause" of the 14th Amendment. "As much as I think it's wrong, even I have acquiesced in it," he said. Particularly when it produces the result he desires.

The liberal justices tried to re-argue their losing position in the Heller case. Stevens asked about a "right to parade around the streets with guns." Breyer asked if a city can't ban guns even if the ban is "saving hundreds of lives."

Scalia replied: "We don't resolve questions like that on the basis of statistics."

No, we resolve them on the basis of Scalia's judicial activism.

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