By David G. Savage, Tribune Washington Bureau
WASHINGTON _ The Supreme Court justices, hearing a Second Amendment challenge to Chicago’s ban on handguns, signaled Tuesday they were ready to extend gun rights nationwide, clearing the way for legal attacks on state and local gun restrictions.
While the court’s majority appears almost certain to strike down Chicago’s ordinance and rule that residents have a right to a handgun at home, the justices may decide nothing more. Instead, they said they need not spell out this year the true scope of the Second Amendment and its “right to keep and bear arms.”
Only Chicago, and its Oak Park suburb, has a total ban on handguns. But many cities and states have laws regulating who can have a gun and where they can take it, all of which may be open to legal challenge once the court rules.
At one point during Tuesday’s argument, Chief Justice John G. Roberts Jr. noted the city’s lawyers doubted that persons have a right to carry “concealed” weapons in public.
“Well, maybe that’s right,” Roberts said. But he quickly added that question can be left for a future case.
The clear message from Tuesday’s argument is that the court’s five-member conservative bloc believes the right “to bear arms” is a fundamental right, like the freedom of speech, one that cannot be unduly restricted by federal regulations, state laws or city ordinances.
Two years ago, the court said reasonable regulations of guns are permitted in the District of Columbia. The tenor of Tuesday’s argument suggested it may take years of lawsuits to draw a line between a gun owner’s right to have a gun for self-defense and the government’s authority to set reasonable regulations on guns.
Since 1982, Chicago has enforced a strict ban on handguns, even for law-abiding residents who wanted to keep one at home. The city’s lawyer argued Tuesday that throughout American history, cities and states have enforced restrictions on weapons, without much interference from federal judges.
“Firearms are designed to injure and kill,” said James A. Feldman. Cities need to regulate them to protect the public’s safety, he said.
But he ran into steadily skeptical questions from the court’s leading conservatives, who referred back to their decision in the Washington, D.C., case. Two years ago, the justices in a 5-4 decision struck down a similar handgun ban in the District and ruled for the first time that the Second Amendment protects an individual’s right to have a gun for self-defense.
Shortly after that decision, gun rights advocates sued to challenge Chicago’s ban on behalf of Otis McDonald and several other city residents. The case forced the high court to confront a simple question it had never answered: Did the Second Amendment limit only the federal government’s authority over guns and state militias, or did it also give citizens nationwide a right to challenge their local and state gun laws?
Since the District of Columbia is not a state, the court’s ruling in District of Columbia v. Heller left that issue unresolved. But during Tuesday’s arguments, the justices who formed the majority in the D.C. case said they had already decided that gun rights deserve national protection.
Justice Anthony M. Kennedy said the “individual right to bear arms” is a “fundamental” right, like the other protections in the Bill of Rights. “If it’s not fundamental, then Heller is wrong,” he said, referring to the ruling in the D.C. case, which he joined. Roberts and Justices Antonin Scalia and Samuel A. Alito Jr. echoed the same theme.
At one point in the argument, Justice John Paul Stevens proposed a narrow ruling in favor of gun rights. He dissented two years ago and said the Second Amendment was designed to protect a state’s power to have a “well regulated militia.” Now, however, Stevens said the court could rule that residents have a right to a gun at home, but not a right “to parade around the street with a gun.”
A lawyer representing the National Rifle Association scoffed at that idea and opposed a “watered down version” of the Second Amendment. Scalia also questioned that idea. In his opinion two years ago, he described the right to bear arms as protecting a right to “carry” a weapon in cases of “confrontation.” If so, this right would not be easily limited to having a gun at home.
The justices will meet behind closed doors to vote later this week on the case of McDonald v. Chicago. It may be until late June before they issue a written ruling.