The justices will be deciding whether the right to possess guns guaranteed by the Second Amendment — like much of the rest of the Bill of Rights — applies to states as well as the federal government. It’s widely believed they will say it does.
By some estimates, about 90 million people in the U.S. own a total of some 200 million guns.
The new lawsuits were begun almost immediately after the court’s blockbuster ruling in 2008 that struck down the District of Columbia’s handgun ban. In that case, the court ruled for the first time that individuals have a right keep guns for self-defense and other purposes. Because the nation’s capital is a federal enclave, that ruling applied only to federal laws.
The challenges to the Chicago area laws, which are strikingly similar to the Washington law, are part of an aggressive push by gun rights proponents in the courts and state legislatures.
Courts are considering many gun laws following the justice’s 2008 decision. Massachusetts’ highest state court is examining the validity of a state law requiring gun owners to lock weapons in their homes.
Two federal appeals courts have raised questions about gun possession convictions of people who previously had been convicted of domestic violence misdemeanors. A suit in Washington challenges the capital’s ban on carrying loaded guns on public streets.
Lawmakers in several states are pushing for proposals favored by the National Rifle Association and other gun rights groups. The Virginia Legislature is considering repealing a law that limits handgun purchases to one a month. That law was enacted in 1993 because Virginia was the No. 1 supplier of guns used in crimes in other states. A separate proposal in Virginia would allow people with a concealed-weapon permit to take hidden guns into restaurants that sell alcohol, as long as those patrons don’t drink.
76-year-old Otis McDonald said he joined the suit in Chicago because he wants a handgun at home to protect himself from gangs.
The thrust of the legal arguments in the case is over how the Supreme Court might apply the Second Amendment to states and cities.
In earlier cases applying parts of the Bill of Rights to the states, the court has done so by using the due process clause of the 14th Amendment, passed in the wake of the Civil War to ensure the rights of newly freed slaves.
The court also has relied on that same clause — “no state shall deprive any person of life, liberty or property without due process of law” — in cases that established a woman’s right to an abortion and knocked down state laws against interracial marriage and gay sex.
This is the approach the NRA favors.
But many conservative and legal scholars — as well as the Chicago challengers — want the court to employ another part of the 14th amendment, forbidding a state to make or enforce any law “which shall abridge the privileges or immunities of citizens of the United States.”
They argue this clause was intended as a broad guarantee of the civil rights of the former slaves, but that a Supreme Court decision in 1873 effectively blocked its use.
Breathing new life into the “privileges or immunities” clause might allow for new arguments to shore up other rights, including abortion and property rights, these scholars say.
This approach might enable challenges to arcane state laws that limit economic competition, said Clark M. Neily III of the public interest law firm Institute for Justice. He pointed to a Louisiana law that protects existing florists by requiring a license before someone can arrange or sell flowers. The licensing exam is graded by florists, he noted.
“No reasonable person thinks that law has a legitimate purpose,” Neily said. But he said, “Right now, once you get a law like this on the books, it’s almost impossible to get rid of.”
The case is McDonald v. Chicago, 08-1521