It's rare for Supreme Court justices to rib their robed brethren in open court. But that's what Justice Stephen Breyer apparently had in mind when he said recently that the court's conservative bloc was advocating the very thing that conservatives have long reviled: judicial activism.
The comment came last week during oral arguments in McDonald v. Chicago, a case over the legality of Chicago's handgun ban. Five justices appeared ready to strike down that ban, echoing a nearly identical 2008 case, Heller v. District of Columbia, in which the court threw out a ban in the nation's capital, citing the Second Amendment.
That amendment reads: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." In Heller, the court decided that the right to bear arms is an individual right and not, as many scholars contend, a right connected to the maintenance of a militia.
But even after that decision, gun laws have still predominantly been determined by state and local governments. That's because the Bill of Rights does not automatically apply to the states.
One of the ways that the Supreme Court could strike down the gun ban would be the so-called incorporation of the Second Amendment, which would then apply it to states. "Without incorporation, it's decided by state legislatures," explained Breyer, one of the court's liberal justices. "With, it's decided by federal judges." Conservatives have long railed against "unelected federal judges" overruling legislatures.
That was only one of a few testy moments last week over the right to keep and bear arms. Attorneys representing the city of Chicago argued for their city's and state's rights to legislate to protect their citizens. "States and local governments have been the primary locus of firearms regulation in this country for the last 220 years," said attorney James Feldman, speaking for Chicago. "Firearms, unlike anything else that is the subject of a provision of the Bill of Rights, are designed to injure and kill."
But attorneys for both the National Rifle Association and the plaintiff in the case, Otis McDonald, who claims he needs a handgun to protect his home from drug gangs, said that the gun right was so central to citizenship that it should trump local regulations. "States may have grown accustomed to violating the rights of American citizens, but that does not bootstrap those violations into something that is constitutional," plaintiff's attorney Alan Gura told the court.
Even if the Chicago ban is struck down, it will have a limited immediate impact on other gun regulations. Additional court cases will be needed to address the legality of state and local regulations that limit gun ownership but do not prohibit it outright. That flurry of cases, sure to come whatever the court decides, ensures that judges will face the issue of gun rights for a long time.
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