A new Second Amendment case

By Lyle Denniston
on Jun 9, 2009 at 4:55 pm

 UPDATE Thursday a.m.  The new petition discussed here has been docketed as 08-1521.

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Alan Gura, the Alexandria, Va., attorney who won the historic Supreme Court ruling last year establishing a personal right to have a gun for self-defense at home, started a new challenge in the Supreme Court Tuesday.  It seeks to have the Second Amendment right enforced against state, county and city gun control laws. The petition in McDonald, et al., v. City of Chicago, can be downloaded here. (A docket number has not yet been assigned.)

Last week, the National Rifle Association filed a separate appeal raising the same issue (NRA, et al., v. City of Chicago, docket 08-1497). It is doubtful that the Court will consider the two new cases before recessing for the summer, probably late this month.

The McDonald petition involves four Chicago residents, the Second Amendment Foundation and the Illinois State Rifle Association, all challenging a handgun ban in Chicago.  Their petition said the ban is identical to one struck down by the Supreme Court in its Second Amendment ruling last June in District of Columbia v. Heller (07-290).

The Heller decision, however, applied only to laws enacted by Congress or for the federal capital in Washington.  The Court expressly left open the question of whether individuals would have the same right against state and local government gun restrictions.

Arguing that the Second Amendment right is a “fundamental” one, the new petition said that means that the Fourteenth Amendment guarantees that such rights “may not be violated by any form of government throughout the United States.  Accordingly, Chicago’s handgun ban must meet the same fate as that which befell the District of Columbia’s former law.”

Part of their argument is that the Justices should step in now to resolve a dispute among federal appeals courts and state supreme courts on whether the Second Amendment is absorbed (technically, “incorporated”) into the Fourteenth Amendment — a part of the Constitution that operates against state and local government.

The question posed to the Court is whether the incorporation is accomplished under either the “privileges or immunities” clause of the Fourteenth Amendment, or under its “due process” clause.  The petition urges the Court to use this case as an opportunity to reexamine the meaning of the “privileges and immunities” provision, which it noted was given an “almost meaningless construction” by the Court’s controversial decision in the Slaughter- House Cases in 1873. 

The split of authority in lower courts “warrants speedy resolution, as it perpetuates the deprivation of fundamental rights among a large portion of the population,” it said. It would serve no purpose to let this conflict go on, the petition contended.