Gun-control case will test limits of Second Amendment
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WASHINGTON -- The Supreme Court set up a historic decision on gun control yesterday, saying it will rule whether restrictive state and local laws violate the Second Amendment right to gun ownership that it recognized last year.
The landmark 2008 decision to strike down the District of Columbia's ban on handgun possession was the first time the court had said the amendment grants an individual right to own a gun for self-defense. But the 5-to-4 opinion in District of Columbia v. Heller did not address the question of whether the Second Amendment extends beyond the federal government and federal enclaves such as Washington.
Most court observers think the five justices who recognized the individual right will also find that the Second Amendment applies to state and local governments, a move that could spark challenges of state and local laws governing gun registration, how and when the weapons can be carried and storage requirements.
The court will hear a challenge of handgun laws in Chicago and the neighboring village of Oak Park, Ill. It was filed by Alexandria, Va., attorney Alan Gura, who successfully argued the Heller case. He said the Chicago ban is "identical" to the one found unconstitutional in the district.
Newly seated Justice Sonia Sotomayor was part of a panel on the 2nd U.S. Circuit Court of Appeals that said, in an unrelated case, that only the Supreme Court could decide whether the Second Amendment applies beyond the federal confines. Because the court accepted the case from the 7th U.S. Circuit Court of Appeals in Chicago, she is free to participate.
The case accepted yesterday is McDonald v. Chicago. The earliest it would be argued is Jan. 11.
Yesterday's announcement came as the court prepared for its new term, which will officially begin Monday. Justices sifted through more than 2,000 petitions accumulated through the summer and selected 10 to hear.
Also on the list was an examination of an anti-terrorism statute, widely used by federal prosecutors, that bans material support to groups that the State Department designates as terrorism organizations. Solicitor General Elena Kagan told the court that the law is a "vital part of the nation's effort to fight international terrorism," but a lower court said some of the statute was unconstitutionally vague.
The decision to accept the Chicago gun case was a natural progression from the decision in Heller, which split the court on ideological grounds. The liberal justices said the Second Amendment guaranteed only a collective right for gun ownership to maintain militias.
If the amendment is extended, the next question will be about the kind of restrictions allowed. The Heller opinion by Justice Antonin Scalia said some requirements would be constitutional, but it was not specific.
The method by which the court might apply the Second Amendment is what interests constitutional scholars. The Bill of Rights originally was thought to be a restriction on the federal government, a perception furthered by a 19th-century court ruling that differentiated between state and federal rights.
Since then, the court has gradually applied most of the 10 amendments to the states in a process called "incorporation," but not the Second Amendment.
Mr. Gura is supported by liberal and conservative scholars, who say the issue should be taken care of by the post-Civil War 14th Amendment, which says a state may not "abridge the privileges and immunities" of citizens nor deprive liberty "without due process of law."
First Published October 1, 2009 12:00 am