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Supreme Court does more wrangling with gun laws

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By Robert Barnes
Washington Post Staff Writer
Wednesday, March 3, 2010

The same members of the Supreme Court who ruled two years ago that the Second Amendment provides an individual right to own a firearm seemed ready Tuesday to ensure that state and local gun-control laws do not interfere with it. But a majority also indicated that the states may have "broader interests" in restricting gun ownership than the federal government.

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Chief Justice John G. Roberts Jr. seemed to say that ruling that the Second Amendment is "incorporated" to apply to state and local governments in establishing a fundamental right to gun ownership would be just the first step in eventually deciding myriad issues relating to gun control.

Deciding that the Second Amendment applies "doesn't say anything by itself about whether those types of regulations, which you think are reasonable and your friends think may not be reasonable, are valid or not," Roberts told the attorney for two Chicago area jurisdictions whose laws are at issue.

The case, McDonald v. Chicago, was the logical follow to the court's 5 to 4 decision in District of Columbia v. Heller. That 2008 decision established for the first time that the Second Amendment's "right to keep and bear arms" referred to an individual right, not one related to military service. But the decision that there is a right to keep a gun in one's home did not extend beyond the federal government and its enclaves such as Washington.

Chicago and the suburb of Oak Park have a ban on handgun ownership virtually identical to Washington's law, which was struck down.

But the long-awaited arguments on whether the Second Amendment applies to localities seemed more like a foregone conclusion.

None of the five justices in the Heller majority seemed moved by arguments by Chicago's attorney, James A. Feldman, that the framers would have been willing to leave it to state and local governments to decide how best to allow citizens a right to self-defense. Justice Anthony M. Kennedy, one of the five, said Feldman missed the point of their ruling -- that the right to bear arms was fundamental to liberty.

"If it's not fundamental, then Heller is wrong, it seems to me," Kennedy said.

Justices John Paul Stevens and Stephen G. Breyer, on the losing side in Heller, were unwilling to give up the fight. Stevens wondered if a limited Second Amendment right could be applied to the states, so that ownership in the home was protected, as opposed to "the right to parade around the streets with guns."

Breyer said even a basic right such as gun ownership should be balanced by arguments about how restrictions could save lives.

"When it's free speech versus life, we very often decide in favor of life," Breyer said. "Here, every case will be on one side guns, on the other side human life."

Roberts and others opposed such limitations, but the chief justice said that even a fundamental right is "still going to be subject to the political process." In Heller, the majority identified ownership by felons or carrying a gun into a school or government building as limitations that might be constitutional restrictions. An expected debate on constitutional theory fizzled. The court already has incorporated most of the Bill of Rights through a part of the 14th Amendment that says states may not "deprive any person of life, liberty, or property, without due process of law." But in accepting the McDonald case, it said it would also consider reviving another part of the amendment, mostly dormant since an 1873 court decision, that forbids laws that abridge "the privileges or immunities of citizens of the United States."

The clause has been praised by an array of constitutional scholars across the political spectrum as the most natural place to locate liberties both named and unnamed in the Constitution.

But Alan Gura, the lawyer who won the Heller case and was representing city residents and gun rights groups in McDonald, ran into trouble when he advocated resuscitating the clause.

Even though conservatives have been sharply critical of using the due-process clause to validate liberty rights, the justices seemed even more wary of the alternative approach. Roberts said it would give federal judges more leeway to recognize new constitutional rights.

Justice Antonin Scalia, a sharp critic of using the due-process clause in the past, blasted Gura. "What you argue is the darling of the professoriate, for sure, but it's also contrary to 140 years of our jurisprudence," he said. "Why do you want to undertake that burden instead of just arguing substantive due process, which as much as I think it's wrong, I have -- even I have acquiesced in it?"

That's the route the National Rifle Association's attorney, former solicitor general Paul Clement, had advocated. Gura said his clients would be happy if that is how the court chose to incorporate the Second Amendment.


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