WASHINGTON (CN) – In polarized debate Tuesday, the Supreme Court considered whether to extend to state and local governments a landmark ruling striking down federal gun control laws. “Here, every case will be on one side, guns, on the other side, human life,” Justice Stephen Breyer said. “When it’s free speech versus life, we very often decide in favor of life.”
Breyer pointed to Chicago’s ban on handguns and asked the gun-rights lawyer skeptically, “You are saying that even if they are saving hundreds of lives, they cannot ban them?”
But Justice Antonin Scalia was quick to rebut Breyer’s safety argument.
“Why would this one be resolved on the basis of statistics?” he asked, and noted that Miranda freedoms sometimes allow dangerous people to walk free after they have confessed a crime because their confessions can’t be admitted in court.
But Justice Ruth Bader Ginsburg compared gun rights to Miranda freedoms and questioned whether the Second Amendment is a fundamental right. “A lot of free societies have rejected the right to keep and bear arms,” she said. “It’s not basic to any free society.”
Scalia pivoted to focus on American society. “What about rights rooted in the traditions and conscience of our people?” he asked.
The Bill of Rights originally only applied to the federal government. But it was extended partially to states in 1868 with the adoption of the 14th Amendment, which blocks states from imposing laws that violate the rights of American citizens.
The question before the Supreme Court is whether the Second Amendment right to “keep and bear arms” should join most of the other Bill of Rights freedoms in falling under the 14th Amendment and thereby apply to state and local governments. The district court ruled that the Second Amendment did not fall within the 14th Amendment, and the Seventh Circuit affirmed.
Alan Gura from Gura & Possessky represented a group of Chicago residents led by plaintiff Otis McDonald. The group sued Chicago for its ban on handguns after the high court struck down a similar law passed by Washington D.C., a federal district, in the court’s 2008 decision District of Columbia v. Heller.
The five justices who ruled in favor in that 2008 decision — Scalia, Chief Justice John Roberts, Justice Clarence Thomas, Justice Samuel Alito and Justice Anthony Kennedy — still sit on the bench. Breyer wrote the dissenting opinion and was joined by Ginsburg, former Justice David Souter, and Justice John Paul Stevens. Since then, Souter has been replaced by Justice Sonia Sotomayor.
In challenging Chicago’s ordinance, Gura said that the 14th Amendment extends fundamental rights “honored by any free government” to all American citizens, including the Second Amendment right to “keep and bear arms”.
He argued that the court should overturn the highly controversial Slaughter-House ruling from 1873, a decision that came from three companion cases, that applied the 14th Amendment only to fundamental personal freedoms and does not restrict state laws affecting other rights such as the right to a grand jury.
“We understand certain rights better today than we did 140 years ago,” Gura said.
Stevens noted that a ruling favoring gun-rights activists would be significant. Refering to historic efforts to incorporate individual freedoms into the 14th Amendment. “We haven’t had an incorporation case for 30 years or more,” he said.
And Sotomayor was critical of Gura’s call for all the freedoms in the Bill of Rights to be extended to bind the states. She said the court has distinguished between freedoms that are fundamental enough to be incorporated into the 14th Amendment and others that are not. “We have drawn a line,” she said.
Roberts also challenged Gura’s call for the court to reject the Slaughter-House decision that has reigned for 140 years. “It’s a heavy burden for you to carry to suggest that we ought to overrule that decision,” he said.
Sotomayor asked why such a drastic change would be necessary, and contemplated the consequences. “States have relied on having no grand juries,” she said, contrasting it to procedure in federal court. “States have relied on not having civil trials in certain money cases.”
University of Pennsylvania Law Professor James Feldman represented Chicago. He argued that the Second Amendment is different from most Bill of Rights freedoms in that it does not apply to the states, urging the court to continue 220 years of leaving gun laws to the discretion of state and local governments.
“Firearms, unlike anything else that is the subject of a provision of the Bill of Rights, are designed to injure and kill,” Feldman said.
He said the amendment was added to keep the federal government from disarming state militias. He nonetheless acknowledged the right to self-defense, but challenged the argument that guns are the means for that defense.
Alito criticized Feldman’s argument as extreme. “Your position is that a state or local government could completely ban all firearms?” he asked.
Scalia pointed to the court’s rulings forcing states to respect privacy rights when it allowed for abortions nation-wide in 1973 and for gay sex in 2003.
“We have not adopted a more rigid rule for the federal government than we have adopted for the states in either of those instances, have we?” Scalis asked in suggesting that gun ownership rights should also be extended to the states.
Scalia did not disagree that the rule was adopted to keep militias, but said the reasoning behind the law is trivial. “That may be the reason it was put there. But it was put there. And that’s the crucial fact,” he said.
He asked why a bar on restricting the militia should stop at the federal government. “Even if you assume that the whole thing turns around the militia prologue, Scalia said, “that prologue is just as important with respect to the states depriving the people of arms.”
Roberts also challenged the militia argument. “That sounds an awful lot to me like the argument we heard in Heller on the losing side.”