Clock ticking down on Chicago handgun ban
by Dave Workman
Senior Editor
Veteran Supreme Court prognosticators, newspaper editorial writers, columnists and legal experts are leaning heavily toward the expectation that before the high court wraps up its current session, Chicago’s decades-old handgun ban will be no more.
In oral arguments before the nine justices early in March, attorneys for the Second Amendment Foundation (SAF)—which brought the lawsuit against the city—and National Rifle Association, which filed a similar lawsuit and was granted time to bolster the challenge, laid out arguments opening the door to incorporation of the Second Amendment to the states through the 14th Amendment.
Right now, it appears a toss-up whether the court will strike down the ban via the 14th Amendment’s “privileges and immunities” clause or the more traditional “due process clause.”
Attorney Alan Gura, representing SAF, the Illinois State Rifle Association and four individual Chicago residents, endured a barrage of early questioning by the justices, particularly Antonin Scalia who authored the landmark Heller ruling in 2008 that affirmed the Second Amendment protects and individual right to keep and bear arms. Gura also argued that case before the court, and opinions are divided about whether the court signaled a rejection of his privileges and immunities argument, or was playing “Devil’s Advocate” so Gura would provide them a legal roadmap toward using that foundation to incorporate, and thus overturn a 140-year-old ruling in the “Slaughterhouse Cases” that many legal scholars believe should be reversed.
The problem is that there really is no “legal roadmap” for using privileges and immunities.
He told the court that in 1868, when the 14th Amendment was adopted, “the right to keep and bear arms was understood to be a privilege or immunity of citizenship, and if the court is considering watering down the Second Amendment, perhaps it should look to text and history.”
NRA attorney Paul Clement argued the due process route, noting, “I think if you compare the First Amendment and the Fourth Amendment to the Second Amendment, they have the same textual guarantee to the people, they trace their origins to preexisting rights back to the English Bill of Rights, back to even earlier constitutional history.”
In a strange reporting notation, the Associated Press observed that “The court has relied on that same clause…in cases that established a woman’s right to an abortion and knocked down state laws against interracial marriage and gay sex.” (Click to read general media reaction story)
Clement told the court that “the First and Second Amendments…were preexisting rights that didn’t depend on the Constitution for their existence.” Clement got the longest uninterrupted opportunity to speak, during which he detailed his perspective on the case.
Attorney James Feldman, representing Chicago in what SAF founder Alan Gottlieb called “an indefensible case,” did not fare well before the majority of the nine justices. At one point, he argued that the Second Amendment is a “self-defense right we need in the Constitution in order—in order to protect the militia against being disarmed by the Federal Government.”
The reaction from Chief Justice John Roberts was quick and cutting.
“That sounds an awful lot to me like the argument we heard in Heller on the losing side,” Justice Roberts observed.
Gura told the court that the Second Amendment is one of only two in the Bill of Rights that has not been held to be incorporated under the 14th Amendment’s due process clause, “which informs us that perhaps we should have the Second Amendment incorporated.”
“There is no reason to treat it any differently,” he said.
A ruling is anticipated in late May or early June, at or near the end of the court’s current session.
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