- The Washington Times - Wednesday, March 3, 2010

The Supreme Court majority that two years ago ruled a near-total ban on handguns in the District to be unconstitutional seemed equally willing on Tuesday to extend the Second Amendment’s right to keep and bear arms to the states.

But the court appeared skeptical, even hostile at times, to an approach by the lead attorney in the case that would involve overturning long-held court precedents to achieve the result.

The high court heard arguments on behalf of four Chicago residents led by homeowner Otis McDonald, the Second Amendment Foundation and the Illinois State Rifle Association to overturn Chicago’s near-30-year-old handgun ban in a case expected to have far-reaching implications for state and local gun control laws.

James Feldman, who represented the city of Chicago, argued that guns should be treated differently from anything else in the Bill of Rights because guns are “designed to injure and kill.” He said the right to self-defense has been effectively regulated through the political process, especially at the state and local levels.

“It’s a right that gets controlled in accordance with local conditions, with local cultures, and with local views about the necessarily difficult questions about how best to protect public safety,” Mr. Feldman said.

But his argument did not seem to hold sway over justices who, by a 5-4 majority in the 2008 District of Columbia v. Heller case, recognized the right for Washington, D.C., residents to register handguns and keep them in their homes.

Justice Anthony M. Kennedy said provisions of the Constitution and the Bill of Rights have been incorporated against the states and that the states have “substantial latitude and ample authority to impose reasonable regulations.”

“Why can’t we do the same thing with firearms?” he asked.

Alan Gura, the Alexandria, Va., lawyer who won the Heller case, represented the plaintiffs who challenged the gun ban. The justices spent a significant portion of Mr. Gura’s time questioning the lawyer on his argument 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.

While most observers expect the justices to incorporate the Second Amendment against the states, the question remained on whether the court would consider revisiting the Slaughterhouse decision, which most modern scholars think was decided incorrectly nearly 140 years ago.

The legal strategy has rankled some conservatives, who say 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.

From the outset, the justices seemed disinclined to entertain Mr. Gura’s argument.

Chief Justice John G. Roberts Jr. told the lawyer that it was a “heavy burden for you to carry to suggest that we ought to overrule that decision.” He asked Mr. Gura whether his approach wouldn’t give justices “a lot more power and flexibility” in determining what rights they think are a good idea.

Mr. Gura said his approach was rooted in the text of the Constitution and in U.S. history, adding that it was “not a license for judges to make up unenumerated rights.” He also noted that he would be “extremely happy” if the court incorporated the Second Amendment through the 14th Amendment’s due process clause - the traditional vehicle that the court has used to make constitutional protections binding on the states.

Justice Ruth Bader Ginsburg and later Justice Kennedy asked Mr. Gura to identify what unenumerated rights he thought would be protected by the privileges or immunities clause as he interpreted it.

Mr. Gura responded that those rights - including the rights to government protection, to obtain and hold property and to sue - have been reiterated throughout American history and that he couldn’t give a full description of all of them.

“That doesn’t trouble you?” Justice Antonin Scalia said.

The sharpest comments on Mr. Gura’s legal strategy also came from Justice Scalia, who referred to overturning Slaughterhouse as the “darling of the professoriate” but also “contrary to 140 years of our jurisprudence.”

He asked whether incorporating the Second Amendment would be made easier through the privileges or immunities clause.

“Justice Scalia, I suppose the answer to that would be no,” Mr. Gura said, “because …”

“Then if the answer is no, why are you asking us to overrule 150, 140 years of prior law, when you can reach your result under substantive due [process],” Justice Scalia interrupted. “I mean, you know, unless you are bucking for a place on some law school faculty.”

The high court is expected to issue a ruling in the case by the end of June.

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

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