« Ind. Law - More on: "Did an amendment to this year’s state budget open the door to tax refunds for nursing homes across the state?" | Main | Courts - The new Supreme Court, 2009 - 2010 »

Thursday, October 01, 2009

Courts - More on the McDonald v. Chicago cert grant

Updating yesterday's ILB entry headed "Courts - The SCOTUS has granted cert in a number of cases, including an Indiana federal case," there are a number of good stories today on the Chicago gun case grant.

Topping the list is this analysis by Lyle Denniston of SCOTUSblog, headed "Making Rights Grow." Some quotes:

The Supreme Court has a few ways of recognizing — one might say “creating” — new constitutional rights, but it has one that it has not used for 30 years. When that technique was last used, John Paul Stevens was the junior Justice, he was just days away from his 59th birthday, and he was already, in his fourth year, marking a distinctive path of his own as a member of the Court. The decision handed down on that April day in 1979 was Burch v. Louisiana.

It is not really one of the great cases (it takes up only a handful of pages in the United States Reports). But Burch, by scholarly reckoning, marked the last time the Supreme Court told the states that they would have to obey a part of the Bill of Rights, originally added to the Constitution in 1791 to restrain the powers of the national government. * * *

On Wednesday, the Court embarked on what is, for every Justice except Stevens, an entirely new constitutional adventure: deciding whether another part of the Bill of Rights is to be broadened so that it curbs state, county and city laws, and not just those enacted at the federal level.

Adam Liptak of the NY Times writes:
The gun-control case, McDonald v. Chicago, No. 08-1521, addresses a question that was left open last year when the court decided that the Second Amendment protects an individual right to own firearms rather than a collective right tied to state militias.

Last year’s decision, District of Columbia v. Heller, concerned only federal laws, and struck down parts of the gun control law in the District of Columbia, a federal enclave. The court ruled that the law violated the Second Amendment by barring law-abiding people from keeping guns in their homes for self-defense.

From Warren Richey's story in the Christian Science Monitor:
The justices announced Wednesday that they will hear an appeal in McDonald v. City of Chicago challenging a handgun ban in Chicago. Gun owners in the city questioned the constitutionality of the ban, citing the Supreme Court's June 2008 decision, in a case called District of Columbia v. Heller, overturning a similar handgun ban in Washington, D.C.

The same lawyer, Alan Gura of Alexandria, Va., who successfully argued the Heller case at the high court is also set to argue the McDonald case.

An appeals court ruled in the Chicago case that the city's handgun ban did not violate the Constitution because the Supreme Court had not yet declared whether its decision in the Heller case established a fundamental right to guns applicable throughout the US.

Since Washington is a federal enclave, the Heller decision left open the question of whether the landmark ruling would also invalidate handgun and other weapons bans enacted by city governments such as Chicago.

The Chicago case hinges on an important feature of constitutional history. When first enacted, the Bill of Rights provided protection against encroachments on individual liberty by the national government. For example, the First Amendment says that Congress shall make no law abridging the freedom of the press. However, it said nothing about restrictions enacted by a state legislature.

Later, however, most of the protections of the Bill of Rights were extended to apply to state and local governments as well as the national government. The question the Supreme Court has now agreed to answer is whether Second Amendment protections of gun rights also apply to state and local governments.

There are two ways those protections might be applied to the states through the 14th Amendment, which is the recognized vehicle for incorporating constitutional rights to the states. One way is through the due process clause of the 14th Amendment. The other is through the privileges and immunities clause, also of the 14th Amendment.

In upholding the Chicago handgun ban, the appeals court in Chicago cited Supreme Court decisions dating from the late 1800s that the Second Amendment applied only to the national government.

More recently, the high court has adopted a different approach when applying constitutional rights to the states. But the appeals court in the Chicago case did not attempt to apply the high court's more recent approach. Instead, the judges insisted that it was up to the Supreme Court, not the lower courts, to decide such a fundamental issue.

In the Washington Post, a story by Mark Sherman of the AP.

Posted by Marcia Oddi on October 1, 2009 07:53 AM
Posted to Courts in general