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Supreme Court gun case could imperil basis of state laws

By Daniel Tencer
Monday, March 1, 2010 13:54 EDT
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The US Supreme Court will hear arguments Tuesday in a case that could affect the ability of states and cities to pass gun bans, and, more broadly, could shift the balance of power between the states and Washington.

If the Supreme Court rules in favor of a challenge to Chicago’s ban on handguns, it could lead to a slew of challenges against state laws on everything, not just guns.

The Supreme Court will rule on McDonald v. City of Chicago, a case in which a Chicago resident has challenged that city’s handgun ban as unconstitutional.

But the case goes much further than the typical bickering over the Second Amendment. That’s because it has more to do with the 14th Amendment than it does with the Second.

In 2008, the Supreme Court struck down the District of Columbia’s law restricting handgun possession, on the grounds it violated the Second Amendment. But that didn’t settle the issue because, as Laura E. Davis reports at Yahoo News, Washington, DC, is federal territory. And the Supreme Court has long maintained that the Second Amendment doesn’t apply the same way to state laws as it does to federal laws.

But the challenge to Chicago’s handgun ban isn’t about the Second Amendment; it’s about the 14th Amendment, which states that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

So if the Supreme Court rules Chicago’s handgun ban unconstitutional — which many observers say is likely, given the court’s conservative leanings in recent years — it would likely be on the grounds that the law “abridged the privileges or immunities” of a US citizen.

The result, Davis argues at Yahoo News, could be a slew of challenges to state laws — any state law that a challenger believes “abridges” his or her “privileges or immunities.”

The potential implications of this case are huge – and not just for gun rights. If the privileges-or-immunities argument prevails, it would bring back a constitutional argument that has been effectively dead since 1873, when a decision (known as the Slaughter-House cases) said that the clause only protects rights of national citizenship. But if the court reinterprets this clause, the wording is so broad that some think it could bring a flood of challenges to numerous other laws. Others fear a privileges-or-immunities revival will lead to too much judicial subjectivity.

Davis notes that, if the court does rule to strike down Chicago’s handgun ban, “it will almost certainly have to contradict its rulings in earlier cases.”

Given the court’s recent leanings, such as its decision to overthrow decades of legal precedent to end restrictions on corporate campaign spending, that doesn’t seem to be an unlikely scenario.

‘Chosen as lead plaintiff because he is African-American’

The Chicago Tribune reports that the challenge to Chicago’s handgun ban was crafted by the same lawyer who challenged the Washington, DC, ban before the Supreme Court two years ago. The paper notes that the lead plaintiff was chosen precisely because he doesn’t fit the stereotype of a “gun nut” — he’s a black man who votes Democrat.

Alan Gura, the Virginia-based attorney who successfully argued the Heller case, had spread the word that he was looking for litigants in Chicago. … His goal was to find a diverse group of individuals willing to represent the cause.

He eventually settled on four people: Adam Orlov, a white, 40-year-old libertarian … David Lawson, a white, 44-year-old software engineer … Lawson’s wife, Colleen, a multiracial 51-year-old hypnotherapist … and [Otis] McDonald.

Amid the clamor of the gun-rights debate, McDonald presents a strongly sympathetic figure: an elderly man who wants a gun to protect himself from the hoodlums preying upon his neighborhood. … McDonald and three co-plaintiffs were carefully recruited by gun-rights groups attempting to shift the public perception of the Second Amendment as a white, rural Republican issue. McDonald, a Democrat and longtime hunter, jokes that he was chosen as lead plaintiff because he is African-American.

 
 
 
 
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