STEVE INSKEEP, host:
The Supreme Court is examining gun rights again. The Second Amendment of the Constitution protects the right to bear arms. Congress has to remember that when passing federal gun laws.
The issue now is whether states must also follow the Second Amendment. A couple of years ago, the court said no. Now, it's considering the issue again. Here's our legal affairs correspondent Nina Totenberg.
NINA TOTENBERG: To understand the issues in play here, you have to know some history. Sorry about that, folks; you just do. For the first 100 years of this nation's history, the Bill of Rights - including the rights of free speech, religion, etc. - limited only what the federal government could do. The states had a much freer hand to act as they wished.
That changed with the Civil War and the amendments enacted afterwards, making clear that the federal government is dominant. By the early 1900s, the Supreme Court had begun to apply the guarantees in the Bill of Rights to the states, but it did so selectively and still has not applied all of them. The court, for example, decided that the right to a civil jury trial is only a federal right, not a right the states must honor.
Two years ago, for the first time, the Supreme Court ruled that the Second Amendment right to bear arms is an individual right and not, as the court had long implied, a right guaranteed for military purposes. The 2008 decision invalidated a ban on handguns in the District of Columbia. And since the nation's capital is a federal enclave, the ruling applied only to federal laws.
Today, the court hears a challenge to a similar handgun ban in Chicago, and the question this time is whether the Second Amendment also applies to state and local laws.
The case was brought by Otis McDonald, a retired maintenance engineer who grew up on a farm in Louisiana shooting rabbits and squirrels. Now, he wants to have a handgun to fend off youngsters in his Chicago neighborhood, where he says his home has been broken into three times.
Mr. OTIS McDONALD (Retired Maintenance Engineer): Old people like myself, if we don't have some kind of deterrent in our homes, youngsters are going to take anything they want to.
TOTENBERG: Gun rights advocates contend that the Chicago handgun ban is unconstitutional, that the Supreme Court has already held that the right to bear arms is an individual and fundamental right. And that means the Second Amendment applies to every jurisdiction in the nation. Paul Clement is representing the National Rifle Association in the Supreme Court today.
Mr. PAUL CLEMENT (Attorney): Given that Chicago probably is pretty similarly situated to the District of Columbia, should there be radically different constitutional law regimes in those two places? And the question here is just whether Chicago is going to be completely unlimited by the federal Constitution.
TOTENBERG: Chicago Mayor Richard Daley replies that the federal government is not responsible for the health and safety of the citizens of Chicago; the city is. And he notes that Congress is not exactly anxious to allow guns onto its property.
Mayor RICHARD DALEY (Democrat, Chicago): Why is it you can't even go see a congressman with a gun? Why can't you carry a gun in the federal building? We have a society by laws. We don't have a society by guns. If you want to make a society by guns, then you arm everyone, and you do away with the police. And eventually, you have chaos.
TOTENBERG: Alan Gura, representing Otis McDonald, counters that the Constitution protects individual rights, and that the right to bear arms is analogous to other rights applied to the states - like the freedom to speak, to worship, and the right to personal autonomy and security.
Mr. ALAN GURA (Attorney): So if you can buy contraceptives and that's your way of extending your personal security, then one must assume that the right to buy a handgun for defensive purposes is also going to be secured as an aspect of liberty.
TOTENBERG: Chicago notes that it allows individuals to have long guns in their homes but not handguns because they are easily stolen, used by criminals or in domestic violence situations - or even fired accidentally by children, resulting in serious injury and many deaths.
Otis McDonald concedes he could have a shotgun at home and that he knows how to use one. But he says it's inconvenient.
Mr. McDONALD: Why should I have to be inconvenienced because of laws that's here to protect me? I'm a law-abiding citizen.
TOTENBERG: McDonald's lawyer, Alan Gura, adds that the right to bear arms is, like other constitutional rights, not a matter of dealer's choice.
Mr. GURA: You have the right to worship. So you don't get to choose from a select menu that's offered to you by the government. And likewise, with arms, if you have an arm - which is of the kind that people would want to have available for self-defense - then that arm cannot be banned entirely.
TOTENBERG: Representing Chicago, lawyer Jim Feldman will tell the Supreme Court today that there is no absolute right of self-defense.
Mr. JIM FELDMAN (Attorney): If there were a free-floating right of self-defense then, you know, you would have the right to a machine gun or a bazooka, or who knows what else. If the claim is that your right to self-defense gives you the right to choose what kind of weapon you want to use, there would be no stopping point.
TOTENBERG: Paul Clement, of the NRA, responds.
Mr. CLEMENT: I think most people would say that a bazooka is probably not even an arm for purposes of the Second Amendment. The machine gun is a more difficult question.
TOTENBERG: Chicago's deputy corporation counsel, Benna Solomon, says that all the talk about the Second Amendment ignores the basic framework of the Constitution.
Ms. BENNA SOLOMON (Deputy Corporation Counsel, Chicago): In addition to the provisions in the Bill of Rights, the founders created a government of states within a federal system. And the prerogatives of state and local governments to enact regulations that they deem best for their local communities is actually a very important constitutional value.
TOTENBERG: The NRA's Paul Clement, however, points to the Civil War, and the constitutional amendments that followed, as changing that framework significantly. The 14th Amendment, he notes, made the federal Constitution apply to the states in certain critical areas.
Mr. CLEMENT: The whole point of Reconstruction was that some state and local experimentation had essentially caused the Civil War, and it was depriving people of their basic civil rights. And so the question in this case is, is the Second Amendment essentially within the scope of those basic civil rights, or is it outside that core group of basic civil rights?
TOTENBERG: It is this clash that makes this case such a big deal, both philosophically and practically. As Clement frames the question...
Mr. CLEMENT: Is the Second Amendment going to be this sort of oddball amendment that only applies in the District of Columbia and the national parks, or is this going to be an amendment that applies nationwide?
TOTENBERG: The odds are that the gun advocates will win this case. The Supreme Court's groundbreaking decision two years ago was by a 5 to 4 vote, with conservatives in the majority. But now, the question is whether a right declared fundamental by the court can be isolated as a federal right only - a proposition that liberals generally have not favored.
And if gun advocates do win this case, you can expect a torrent of other cases - some already in the pipeline - that test a huge array of existing gun regulations, everything from laws banning concealed weapons to those banning the carrying of weapons in public without a permit, and laws that issue a carry permit only upon a showing of good cause or necessity.
Then there are laws that limit the number of guns that can be purchased at any one time; laws that ban assault weapons; laws that ban hunting rifles with sights in urban areas; laws that require guns to be trigger-locked or stored in locked containers; even a new California law that requires handguns to micro-stamp each cartridge, when fired, with the serial number of the gun.
All of these could be in jeopardy, depending on how the Supreme Court rules. Nina Totenberg, NPR News, Washington.
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