Firing line: The high court is set to expand the 2nd Amendment
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In 2008 when the U.S. Supreme Court found for the first time that the Second Amendment outlined an individual, as opposed to a collective, right to keep and bear arms, we said what was fairly obvious to all -- that in settling one battle, the court had invited a thousand.
Last week the court took up the first invitation to be accepted, by plaintiffs seeking to overturn gun control laws in Chicago.
The 2008 ruling concerned a restrictive law in Washington, D.C. In the oral arguments heard Tuesday, the central question was whether a decision affecting federal enclaves, like the District of Columbia, should have an impact on states and communities outside them.
It is logical to suppose that the court's decision on the Second Amendment would apply everywhere, as most non-lawyers would assume. After all, the court has previously said that most of the Bill of Rights should apply to state and local laws, too.
On Tuesday the justices seemed inclined to agree, but this is more than an academic argument. It is how they might agree that is the potential problem. Chicago's law, which bans the sale and possession of handguns, is seen as the most restrictive in the nation and it may be easy for the justices to apply the Washington case to overturn it. But what of other statutes around the country that don't go as far? Where will the line be drawn?
There is reason for hope and concern. The optimism can be drawn from the 2008 opinion. Although the ruling was a dramatic upheaval of the law, as Justice John Paul Stevens described it in his dissent, Justice Antonin Scalia allowed that the Second Amendment wasn't all-powerful. In writing for the majority, he said that "nothing in our opinion should be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools or government buildings ..."
The cause for concern is in the composition of the court itself. The right-wing majority has lately shown a fondness for its own flavor of judicial activism and to heck with restraint. In the recent case concerning campaign contributions, it went out of its way to find that the rights of corporations are analogous to those of people under the First Amendment. And the Second Amendment is clearly a special favorite of theirs.
Precedent lovers beware. Pandora's box is now open.
First Published March 8, 2010 12:00 am