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Monday, March 01, 2010

Courts - More on "SCOTUS to define reach of gun-control laws"

Updating this ILB entry from Feb. 26th, more on tomorrow's oral argument.

From today's Fort Wayne Journal Gazette:

In Washington, D.C., the U.S. Supreme Court will hear oral arguments on an even bigger case [than the Indiana voter ID case] that could well reverse a 137-year-old precedent and require Chicago and other cities to permit residents to have handguns.

The court will hear the case of McDonald v. Chicago on Tuesday. Two years ago, the justices ruled that the Washington handgun ban violated the Second Amendment. So it seems inevitable that the court will extend that ruling past the federally controlled District of Columbia to the 50 states.

At issue is not only the Second Amendment but also the 14th Amendment, the privileges and immunities clause. The language in question: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

An 1873 Supreme Court decision ruled that language did not automatically apply the Bill of Rights to states and cities, though the courts have “incorporated” most of those rights to apply to the states. But not the Second Amendment.

One brief filed in support of the lawsuit carries the names of Rep. Mark Souder, Texas Sen. Kay Bailey Hutchison and two other members of Congress. Fifty-six additional members signed on – including Sen. Evan Bayh. Among the brief’s questionable arguments: “If many States and local governments followed (Chicago’s) example, Congress’ ability to exercise its enumerated martial powers would be undermined.”

The court is likely to strike down Chicago’s handgun law.

In addition, here is the amicus brief of the States of Texas, Ohio, Arkansas, Georgia, Alabama, Alaska, Arizona, Colorado, Florida, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming in Support of Petitioners.

Take a look at the SCOTUS Wiki page on McDonald v. City of Chicago for more information, including listings and links to the enormous number of amicus briefs filed in the case.

Robert Barnes of the Washington Post has a story today headed "Gun case presents quandary for Supreme Court justices." Here is a sample:

To most, it might seem illogical that the Bill of Rights would apply only to actions of the federal government, but that was its intent. Over the years, the court has said most of it applies -- or in the court's language is "incorporated" -- through the 14th Amendment.

That post-Civil War amendment was meant to protect rights and outlaw discrimination. It forbade states to pass laws that abridged "the privileges or immunities of citizens of the United States." It said states may not "deprive any person of life, liberty, or property, without due process of law" and guaranteed "equal protection of the laws."

Mostly, the justices have used the "due process" clause to incorporate the majority of the Bill of Rights. The National Rifle Association and others have urged the court to continue to use it to incorporate the Second Amendment.

But others, notably scholars from the liberal Constitutional Accountability Center and the libertarian Cato Institute, have urged the court to revive another clause from the 14th Amendment, the one that protects the "privileges or immunities of citizens of the United States" -- 19th-century-speak for "rights." An 1873 Supreme Court decision has buried the "privileges or immunities clause" by saying it covered only a narrow range of national rights, such as traveling to the capital.

The justices said in taking the McDonald case they would decide whether either clause incorporated the Second Amendment. And the exercise will provide interesting revelations.

See also this editorial today from the LA Times, According to the editorial, "If the court were to rule for the city and uphold the ban, it would undermine one of the most significant developments in legal history: the "incorporation" of the Bill of Rights (with minor exceptions) under the 14th Amendment to apply to the states.."

[More] At 4 PM today, March 1, 2010, C-SPAN will air (and archive) a panel discussion on McDonald v. Chicago.

Posted by Marcia Oddi on March 1, 2010 12:49 PM
Posted to Courts in general