Constitutional Law

Supreme Court Likely to Extend Second Amendment

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At an argument that drew a crowd of people so eager to bear witness that they braved the elements for more than 24 hours waiting in line, U.S. Supreme Court justices appeared poised to extend the Second Amendment guarantee of a right to own a gun.

But the high court in McDonald v. City of Chicago also seemed likely to allow municipalities some authority to regulate that right, SCOTUSblog’s Lyle Denniston observed.

Denniston reports that the dominant sentiment on the court was to extend the amendment beyond the federal level, based on the 14th Amendment’s guarantee of “due process.”

The focus of the court’s initial debate may be how extensively the right to keep and bear arms should be spelled out.

Denniston noted that, “An attempt by an attorney for the cities of Chicago and Oak Park, Ill., defending local bans on handguns in those communities, to prevent any application of the constitutional gun right to states, counties and cities looked forlorn and even doomed.”

But Denniston wrote that the the “first argument to collapse” Tuesday was the plea by gun rights advocates, represented by Alexandria lawyer Alan Gura, who urged the court to “incorporate” the Second Amendment into the 14th Amendment through the “privileges or immunities” clause.

“In the first comment from the bench after Gura had barely opened, Chief Justice John G. Roberts Jr., noted that the court had essentially scuttled that argument with its ruling in the SlaughterHouse Cases in 1873. And within a few minutes, Justice Antonin Scalia—the author of the Heller opinion and the court’s most fervent gun enthusiast—was sarcastically dismissing the ‘privileges or immunities’ argument,” Denniston wrote.

Denniston recounts this exchange: “‘Why,’ Scalia asked Gura, ‘are you asking us to overrule 140 years of prior law … unless you are bucking for a place on some law school faculty.’ The justice said the ‘privileges or immunities’ argument was ‘the darling of the professorate’ but wondered why Gura would ‘undertake that burden.’ “

Scalia went on to note that the “due process” clause was available as the vehicle for incorporation. To which, Gura responded, “somewhat meekly” that “we would be extremely happy” if the court used the “due process” clause to extend the Second Amendment’s reach.

Look for observations of today’s hearing later this evening from ABA Journal guest blogger Mike Sacks, who was one of those camped out at the court to get a seat in the McDonald courtroom.

Related coverage:

Los Angeles Times: “Justices signal they’re ready to make gun ownership a national right”

Blog of Legal Times: “In Chicago Gun Case, Supreme Court Sounds Note of Caution”

New York Times: “Tailgating at the Supreme Court, Without the Cars”

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