Gun Case Loaded with Implications

The U.S. Supreme Court heard oral arguments in McDonald v. Chicago, which could be the most significant case the high court decides this year. The court will decide whether its decision 20 months ago in District of Columbia v. Heller — that the Second Amendment right to keep and bear arms is an individual rather than a collective right — applies to states and municipalities as well as the federal government.

How the court arrives at its decision could be more significant than the decision itself.

Aspects of the Bill of Rights and the Heller decision made this case against a municipality that has a strict ban on possession of handguns, even in the home, inevitable. The Heller case applied to the District of Columbia, a federal enclave. And the Bill of Rights was originally written to protect individual rights against encroachment by the national government, not necessarily the state and local governments.

However, the 14th Amendment, passed after the Civil War to ensure the freedom of former slaves, says, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law."

Over the years, the Court has used the 14th Amendment to "incorporate" the protections in the Bill of Rights against state and local governments.

Thus state and local governments may not violate freedom of religion or speech, conduct unreasonable searches or seizures or deny the right to a speedy trial or trial by jury.

However, the high court has not previously found the Second Amendment to be "incorporated" into state and local law. Since the Heller decision declared the right to keep and bear arms a "fundamental" right, it would be difficult to imagine that the high court will not decide that state and local governments cannot violate it, either.

But how it does so may be important. Most "incorporation" decisions have relied on the due-process clause, though some argued that using a procedural clause to enforce a substantive right is inappropriate. If the court uses the "privileges or immunities" clause, however, that could lead to other rights, including some not mentioned in the Bill of Rights, being considered inviolable.

So pay attention to the details.

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