- The Washington Times - Monday, June 28, 2010

The Supreme Court on Monday said the Second Amendment gives all Americans a right to keep and bear arms for self-defense that can’t be infringed by state and local laws — a landmark ruling likely to result in scores of lawsuits seeking to further test the boundaries of gun restrictions nationwide.

In a 5-4 decision, the court rejected arguments that overturning Chicago’s near-30-year-old handgun ban would have grave implications for cities and states attempting to control crime, with Justice Samuel A. Alito Jr. noting that gun ownership is “not the only constitutional right that has controversial public safety implications.”

“The right to keep and bear arms must be regarded as a substantive guarantee, not a prohibition that could be ignored so long as the states legislated in an evenhanded manner,” Justice Alito wrote for the majority. The majority did signal that some gun restrictions could pass constitutional muster.

The ruling considering Chicago’s ban was similar to the court’s decision in the 2008 case District of Columbia v. Heller, which recognized the right of D.C. residents to register handguns and keep them in their homes for their protection.

Because of the District’s status as a federal enclave, the Heller decision did not apply to states and localities. But Monday’s ruling in McDonald v. City of Chicago establishes that the Second Amendment offers a fundamental right to gun ownership that can be enforced nationwide, not only against the federal government but also against the states.

In a dissent that struck not only at the majority opinion but also at the premise of the Heller decision, Justice Stephen G. Breyer said he could “find nothing in the Second Amendment’s text, history, or underlying rationale that could warrant characterizing it as ‘fundamental’ insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes.”

“Nor can I find any justification for interpreting the Constitution as transferring ultimate regulatory authority over the private uses of firearms from democratically elected legislatures to courts or from the states to the federal government,” Justice Breyer said in a dissent that was joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor. Justice John Paul Stevens issued a separate dissent.

The five justices who formed the majority — Chief Justice John G. Roberts Jr. and Justices Alito, Clarence Thomas, Anthony M. Kennedy and Antonin Scalia — also formed the majority in the 5-4 decision on Heller.

Wayne LaPierre, executive vice president of the National Rifle Association, called the ruling a “great moment in American history.”

“The Supreme Court said what a majority of the American public believes,” he said. “The people who wrote the Second Amendment said it was an individual right, and the court has now confirmed what our Founding Fathers wrote and intended.”

The decision does not immediately overturn Chicago’s gun laws, instead sending the case back to a federal appeals court, where the gun ban is virtually certain to be lifted.

The decision also suggests that state and local governments should be given leeway in crafting gun restrictions that benefit their communities. Justice Alito wrote that the ruling “limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values.”

“Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms,” he said.

Paul Helmke, president of the nonprofit Brady Center and Brady Campaign to Prevent Gun Violence, was encouraged by that aspect of the ruling.

“The court again recognized that the Second Amendment allows for reasonable restrictions on firearms, including who can have them and under what conditions, where they can be taken, and what types of firearms are available,” he said.

Mr. Helmke pointed out that at least 240 legal challenges to gun restrictions have been filed since the Heller decision, which in Washington led to the drafting and redrafting of gun laws and two years of litigation over those statutes.

A U.S. District judge in March dismissed an NRA-backed lawsuit and upheld the District’s firearm registration requirements, its bans on assault weapons and large-capacity ammunition-feeding devices. Another lawsuit pending in District Court challenges whether D.C. residents should be entitled to carry guns outside their homes, either openly or in a concealed manner.

Constitutional scholar Ken Klukowski, senior legal analyst for the American Civil Rights Union, who wrote an amicus brief that supported extending Second Amendment rights on behalf of a handful of conservative groups, said Monday’s ruling opens to legal scrutiny the nation’s 20,000 or so federal, state and local gun laws.

“These two cases, Heller and McDonald, these were the low-hanging fruit. Now the work really begins. Every gun law in the country can now be challenged on constitutional grounds. A good many of them will be upheld,” he said. “There will be more laws to be struck down.”

While Monday’s decision was widely expected after the Heller ruling, it remained to be seen how the court would extend — or, as legal scholars say, “incorporate” — Second Amendment protections.

The justices traditionally have incorporated constitutional protections through the 14th Amendment’s due process clause — the vehicle the court used to say that states, in addition to the federal government, cannot infringe on the First Amendment’s right of free speech, the Fourth Amendment’s protection against unreasonable searches and seizures, the Fifth Amendment’s protection against self-incrimination and the Eighth Amendment’s prohibition against cruel and unusual punishment, among other protections spelled out in the Bill of Rights.

Justice Scalia wrote in a concurring opinion that he “acquiesced” with incorporation through due process despite “misgivings about Substantive Due Process as an original matter.”

But Alan Gura, the Alexandria lawyer who won the Heller case and represented the four Chicago residents led by homeowner Otis McDonald, the Second Amendment Foundation and the Illinois State Rifle Association, had argued that the court should overturn precedents it established in the 1873 Slaughterhouse cases involving the 14th Amendment privileges or immunities clause.

Mr. Gura argued that the privileges or immunities clause was intended to extend the protections of the Bill of Rights to all Americans and that the justices in the Slaughterhouse cases erred in ruling that the clause protected only citizenship rights bestowed by the federal government.

The legal strategy rankled some conservatives, who said a victory on that argument could empower the court and be fodder for liberal judges to find rights unenumerated in the Constitution that could guarantee gay marriage, abortion rights or government-provided health care.

While most modern scholars think the Slaughterhouse case was decided incorrectly nearly 140 years ago, the justices seemed disinclined to revisit the decision.

“There is no need to reconsider the court’s interpretation of the privileges or immunities clause in the Slaughter-House Cases because, for many decades, the court has analyzed the question whether particular rights are protected against state infringement under the Fourteenth Amendment’s Due Process Clause,” Justice Alito wrote.

Justice Thomas penned another concurring opinion that supported a fresh interpretation of the privileges and immunities clause.

• Matthew Cella can be reached at mcella@washingtontimes.com.

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