Supreme Court Remains Divided Over Gun Control

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Supreme Court Remains Divided Over Gun Control
By ADAM LIPTAK

WASHINGTON — An unusually intense Supreme Court argument Tuesday showed that the justices remain bitterly divided about the meaning and scope of the Second Amendment. And it suggested that the five-justice majority in the 2008 decision that first identified an individual right to keep and bear arms was prepared to take another major step in subjecting gun control laws to constitutional scrutiny.

The case the justices considered Tuesday was a sequel to the blockbuster 2008 decision, District of Columbia v. Heller.

The Heller case placed limits on what the federal government could do to regulate guns, and the issue before the court now was whether the Second Amendment applies to state and local laws as well. It seemed plain that at least the five justices in the Heller majority would say yes without reservation.

But the two justices who wrote dissents in Heller, Justices John Paul Stevens and Stephen G. Breyer, peppered the lawyers with questions about how the court might apply the Second Amendment to the states in only a limited way.

Justice Breyer asked Alan Gura, a lawyer for residents of Chicago challenging its strict gun control law, whether the city should remain free to ban guns if it could show that hundreds of lives would be saved. Mr. Gura said no.

Justice Antonin Scalia, who wrote the majority decision in Heller, objected to the inquiry. A constitutional right, he said, cannot be overcome because it may have negative consequences.

But Justice Scalia was less receptive to an idea that has excited constitutional scholars in recent months.

“What you argue,” he told Mr. Gura, “is the darling of the professoriate, for sure, but it’s also contrary to 140 years of our jurisprudence.”

Justice Scalia was referring to Mr. Gura’s assertion that the court has been going about making parts of the Bill of Rights applicable to the states in the wrong way.

The Second Amendment, like the rest of the Bill of Rights, was originally a restriction on only the power of the federal government. The Supreme Court later ruled that most but not all of the protections of the Bill of Rights apply to the states under the due process clause of the 14th Amendment, one of the post-Civil War amendments.

Many judges and scholars, including Justice Scalia, have never found that methodology intellectually satisfactory. “Due process,” after all, would seem to protect only fair procedures and not substance. The very name given to the methodology — substantive due process — sounds like an oxymoron.

Mr. Gura, supported by scholars all along the political spectrum, argued that the court should instead rely on the 14th Amendment’s “privileges or immunities” clause, which says that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” There is evidence that the authors of the clause specifically wanted it to apply to allow freed slaves to have guns to defend themselves.

Justice Scalia was unimpressed. He said Mr. Gura should focus on winning his case rather than remaking constitutional law.

“Why do you want to undertake that burden,” Justice Scalia said, “instead of just arguing substantive due process, which as much as I think it’s wrong, even I have acquiesced in it?”

Unless, that is, the justice added, Mr. Gura was “bucking for a place on some law school faculty.”

Justice Ruth Bader Ginsburg asked questions seeking to elicit where Mr. Gura’s new path would lead, and she did not appear to receive responses that satisfied her. The problem was compounded when Mr. Gura misunderstood Justice Ginsburg’s assertion that much of the population was without important rights when the 14th Amendment was adopted.

Mr. Gura thought she was referring to blacks in the South, but she was referring to women.

The Second Amendment says, “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.” (Some transcriptions omit the last comma.)

Justice Breyer, drawing on the first clause of the amendment, said that a right tied to state militias might be worthy of protection, while the right to bear arms “to shoot burglars” might not be. Justice Stevens, on the other hand, proposed a right limited to keeping a gun for protection against intruders into the home.

James A. Feldman, a lawyer for Chicago in the case, McDonald v. Chicago, No. 08-1521, urged the justices to treat the Second Amendment differently from its cousins because it concerns a lethal product. “Firearms, unlike anything else that is the subject of a provision of the Bill of Rights, are designed to injure and kill,” he said.

Now it was the chief justice’s turn to give advice to the lawyer before him.

“All the arguments you make against” applying the Second Amendment to the states, Chief Justice Roberts said, “it seems to me are arguments you should make in favor of regulation under the Second Amendment. We haven’t said anything about what the content of the Second Amendment is beyond what was said in Heller.”

Heller struck down parts of the District of Columbia’s gun control law, the strictest in the nation. It went on to suggest that all sorts of restrictions on gun ownership might pass Second Amendment muster, including ones concerning, in Justice Scalia’s words, “the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”