We all expected this didn't we?
High court looks at reach of Second Amendment
Updated 3/2/2010
By Joan Biskupic, USA TODAY
WASHINGTON — During a spirited hour of oral arguments Tuesday, the Supreme Court appeared ready to rule that the Second Amendment right to bear arms applies to firearms regulation in the states and cities.
Several justices, including Anthony Kennedy, signaled by their questions that they believed the right to firearms is sufficiently "fundamental" that it should cover people challenging state and local gun regulation, as well as that passed by the federal government.
CASE LOG: Major cases facing the supreme court
Tuesday's arguments in a dispute over a Chicago handgun ban flowed from a 2008 ruling in which the Supreme Court said for the first time that the Second Amendment protects an individual right to bear arms. The prevailing judicial view until then had been that it protects only a collective right of state militia, such as a National Guard.
That 2008 case, District of Columbia v. Heller, covered regulation by the U.S. government and federal enclaves, such as Washington. It left open the question of whether the new right extends to firearms regulation in states and cities.
The overriding question Tuesday was whether the newly established right to bear arms is so fundamental that it should protect people against state and local laws. The city of Chicago contends it is not and argues that the Second Amendment is significantly different from other provisions in the Bill of Rights because it involves a right associated with a weapon designed to kill or cause serious injury.
"If (the right to bear arms) is not fundamental, then Heller is wrong," asserted Kennedy, who was in the majority in the 2008 decision and often is a swing vote.
Chief Justice John Roberts, who also appeared ready to vote that the right to bear arms would extend to people in the states, said local governments and "the political process" would still allow some firearms regulations, for example, on how guns could be carried.
Justice Stephen Breyer was most vigorous in asserting that the Second Amendment involves dangerous weapons and should not be accorded the same status as other constitutional rights. "We're starting with a difference in purposes," he said, suggesting that the right to weapons cannot be equated with the right to free speech, for example.
"Even if (city officials) are saving hundreds of lives, they cannot ban (guns)?" Breyer asked skeptically at one point. He dissented in the 2008 decision.
Justice John Paul Stevens suggested by his questions that the Second Amendment right should be limited in the states and that local legislators should have wide latitude to curtail firearms.
Those challenging the Chicago handgun ban include Otis McDonald, who lives on the city's far South Side and says he wants a handgun to protect his family from criminals in his deteriorating neighborhood.
Virginia lawyer Alan Gura, who had been the lead lawyer in the 2008 case and represents McDonald, spent most of his time Tuesday arguing about the particular grounds on which the justices might base their ruling.
The Supreme Court has extended most of the first 10 amendments to the Constitution (the Bill of Rights) to the states and localities through a provision of the Fourteenth Amendment that says no state shall infringe on "life, liberty or property without due process of law."
Yet Gura argued that the high court should extend the Second Amendment to the states through a separate clause of the Fourteenth Amendment, which says, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."
That rationale got little traction.
Paul Clement, a former U.S. solicitor general under President George W. Bush, represented the National Rifle Association and urged the justices to use the straightforward grounds of the Fourteenth Amendment's due process guarantee.
"The Second Amendment, like the First (safeguarding free speech) and Fourth (guarding against unreasonable searches), protects a fundamental pre-existing right that is guaranteed to the people," Clement said.
Defending the city of Chicago's effort to prohibit handguns, lawyer James Feldman told the justices that the right to bear arms was "not fundamental like freedom of speech and freedom of religion." He emphasized that handguns are regularly the means of violent death and suicide.
"Firearms, unlike anything else that is a subject of the Bill of Rights, are designed to injure or kill," Feldman said.
The justices' votes in the 2008 case split along ideological lines. In the majority were conservatives: Chief Justice Roberts and Justices Kennedy, Antonin Scalia, Clarence Thomas and Samuel Alito. Dissenting were liberals Stevens, Breyer, Ruth Bader Ginsburg and David Souter (who has since retired and been succeeded by Sonia Sotomayor).
At times, Tuesday's arguments in McDonald v. City of Chicago turned testy and sounded as if justices on the two sides of Heller were rearguing that 2008 case. A ruling in McDonald v. City of Chicago is likely by the end of June when the justices usually recess for the summer.
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