The U.S. Supreme Court will be deciding whether the Second Amendment applies to states as well as the federal government when it hears arguments on Chicago and Oak Park Illinois’ gun laws on Tuesday.
New lawsuits that sprang up in the wake of the 2008 court ruling that struck down Washington D.C.’s handgun ban are challenging the state’s authority to restrict gun ownership. The D.C. case applied only to federal jurisdictions, as Washington is a federal district.
The current case before the Court challenges Chicago and Oak Park’s handgun laws, which are similar to the law Washington D.C. had overturned. 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.
But some legal scholars – as well as the Chicago challengers – want the court to use the “privileges and immunities” clause of the 14th amendment, which forbids a state from making or enforcing 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.
If the Court uses the “privileges or immunities” clause, it might allow for new arguments to shore up other rights, including abortion and property rights.
The Brady Center to Prevent Gun Violence is urging the court not to do anything that would prevent state and local governments “from enacting the reasonable laws they desire and need to protect their families and communities from gun violence.”
Courts are taking another look at many gun laws following the Supreme Court’s 2008 decision. In Massachusetts, the Supreme Judicial Court is examining the validity of a state law requiring gun owners to lock weapons in their homes. A suit in Washington challenges the capital’s ban on carrying loaded guns on public streets.
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.
Thirty-three amicus curiae (“friend of the court”) briefs for this case have been filed with the Clerk of the Supreme Court.
One of these briefs was filed by U.S. senators Kay Bailey Hutchinson (R, TX) and John Tester (D, MT) and U.S. representatives Mark Souder (R, IN) and Mike Ross (D, AR) asking the Supreme Court to find in favor of the petitioners and rule that the Second Amendment does apply to the states. The brief was signed by 58 senators and 251 representatives, more members of Congress than any amicus curiae brief in history.
-Attorney John J. MacLaughlan