Supreme Court Still Divided on Guns

NEW YORK TIMES
WASHINGTON — At least five justices appeared poised to expand the scope of the Second Amendment’s protection of the right to bear arms on Tuesday, judging from comments at an unusually intense Supreme Court argument.

By its conclusion, it seemed plain that the court would extend a 2008 decision that first identified an individual right to own guns to strike down Chicago’s gun control law, widely considered the most restrictive in the nation.

While such a ruling would represent an enormous symbolic victory for supporters of gun rights, its short-term practical impact would almost certainly be limited. Just how much strength the Second Amendment has in places that regulate but do not ban guns outright will be worked out in additional cases.

The new case, McDonald v. Chicago, No. 08-1521, was a sequel to the 2008 decision in District of Columbia v. Heller, which placed limits on what the federal government may do to regulate guns. The issue before the court in the new case was whether the Second Amendment also applied to state and local laws. It appeared that at least the justices in the Heller majority would say yes without reservation because they considered the rights protected in the Second Amendment as basic as those in other provisions of the Bill of Rights.

Justice John Paul Stevens, who wrote a dissent in Heller, suggested Tuesday that important questions remain unresolved. “I’m asking you what is the scope of the right to own a gun?” he said. “Is it just the right to have it at home, or is the right to parade around the streets with guns?”

Heller itself struck down parts of the gun control law in the District of Columbia, then the strictest in the nation. But the majority opinion, by Justice Antonin Scalia, suggested that all sorts of restrictions on gun ownership might pass Second Amendment muster.

Justice Stephen G. Breyer, who also wrote a dissent in Heller, peppered the lawyers with questions about how the court might apply the Second Amendment to the states in a limited way. 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.” Drawing on the first clause of the amendment, Justice Breyer 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.

The lead plaintiff in the case, Otis McDonald, has said he wants to keep a handgun in his home for protection from drug gangs. Justice Breyer asked Alan Gura, a lawyer for residents of Chicago challenging its 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 Scalia objected to the inquiry. A constitutional right, he said, cannot be overcome because it may have negative consequences.

James A. Feldman, a lawyer for the City of Chicago, 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,” Mr. Feldman said.