Chicago Handgun Ban In Jeopardy At Supreme Court The justices are weighing a central question: Does the Second Amendment's right to bear arms trump local laws that restrict gun ownership? By the end of Tuesday's argument, it seemed the court would overturn Chicago's law, while still supporting strong gun regulations.


Chicago Handgun Ban In Jeopardy At Supreme Court

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This is ALL THINGS CONSIDERED from NPR News. I'm Melissa Block.


And I'm Michele Norris.

People started lining up outside the U.S. Supreme Court yesterday just to be sure they got a seat for today's argument. Some even flew across the country to be in the chamber. The focus of all this attention: the latest gun-rights case. At issue is whether the Second Amendment right to bear arms limits what kind of gun regulations can be adopted by state and local governments.

NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: Two years ago, the Supreme Court ruled for the first time that the right to bear arms is an individual right, not, as the court had long implied, a right aimed at protecting state militias from federal control. The court's five-to-four ruling struck down a ban on handguns in the District of Columbia. But because the nation's capital is a federal enclave, the ruling only applied to federal restrictions on guns. Today, the court examined a similar ban on handguns in Chicago to determine whether the same rules apply to state and local governments.

Chicago's handgun ban was challenged by Otis McDonald, a retiree who says his Chicago home has been broken into three times.

Mr. OTIS MCDONALD: We should have at least a deterrent. And I think that that will give would-be robbers, or what have you, something to think about when they get ready to break into a house.

TOTENBERG: But Chicago's counsel Benna Solomon said that under the Constitution, it is state and local governments that have the duty to protect citizens and the right to determine through the democratic process how best to do that.

Ms. BENNA SOLOMON (Deputy Corporation Counsel, Chicago): Handguns are the weapon of choice in this country for homicides, suicides and other armed violence. Chicago has reacted to that choice by making them illegal. Long guns are allowed. They do not present the same risks. It's real tough to tuck one into your pocket and go out on the street for a drug deal.

TOTENBERG: Inside the courtroom, Alan Gura, representing Otis McDonald, rested his argument on a novel constitutional argument, at least in modern times. The argument, pushed by a coalition of liberal and conservative scholars, would broaden both the rights specified in the Constitution and the unspecified rights of citizenship. Questioned by Chief Justice Roberts, Gura acknowledged, though, that for the court to adopt his theory, the justices would have to reverse key cases dating back 140 years.

Justice Antonin Scalia, the author of the court's 2008 pro-gun decision, asked Gura if he couldn't get the same result via the more accepted route of just applying the court's recent gun ruling to the states. Yes, agreed Gura, that would do the trick. Scalia, bluntly: Why are you asking us to overrule 140 years of prior law unless you're bucking for a place on some law school faculty? Justice Stevens: Would there be a right to own a gun for self-protection without the Second Amendment? Answer: Yes. Justice Stevens: Is it just the right to have it at home or the right to parade around the streets with guns? Gura didn't answer that question.

Justice Breyer opined that the right to bear arms is different from other provisions in the Bill of Rights because it involves a threat to human life. When it's free speech versus life, said Breyer, we very often decide in favor of life. Here, every case will be on one side guns, on the other side human life. How are federal judges, rather than legislatures, supposed to carry this out? Defending Chicago's handgun ban, lawyer Jim Feldman told the justices that firearms are unlike anything else in the Bill of Rights because they are designed to injure or kill.

In addition, he said, firearms are not essential to the concept of ordered liberty. Many democratic countries have rejected them entirely. Justice Scalia: Many democratic countries have rejected jury trials too. Justice Kennedy: If the right to bear arms is not fundamental, then our decision two years ago was wrong. Chief Justice Roberts: All the arguments you make against applying the Second Amendment to the states are arguments you should make in favor of regulation, even though there is a right to bear arms, for example, that you should not be able to carry a concealed weapon.

Justice Sotomayor: What in our structure or history makes the right to bear arms not fundamental enough to apply to the states? Feldman replied that 44 states have their own constitutional provisions protecting the right to bear arms, but many specify that right is subject to regulation. Justice Scalia: If that regulation includes banning entirely, that would make a nullity of the Second Amendment. Justice Kennedy: Even when we've applied provisions of the Bill of Rights to the states, we have allowed the states substantial latitude to impose reasonable regulations. Why can't we do the same thing with firearms?

Answer: Chicago allows long guns in the home, but not handguns, as the best way to achieve public safety. By the end of today's argument, though, the Chicago ban looked like it was in trouble. But at the same time, there appeared to be a majority of justices who want to signal they'll support other strong regulations on guns.

Nina Totenberg, NPR News, Washington.

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