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A Supreme Court gunfight

A Chicago gun-control case will hinge on the 14th Amendment and the Bill of Rights.

October 06, 2009

Last year, the Supreme Court declared in a Washington, D.C., case that the constitutional right to keep and bear arms belongs to individuals and not, as gun-control advocates had hoped, just to state militias. Last week, the court agreed to decide whether that broad, and debatable, interpretation of the 2nd Amendment applies to states as well as the federal government. At issue is a Chicago law imposing stringent restrictions on gun ownership, including a ban on the private ownership of handguns.

If you support measures to reduce gun violence, as this page does, it's tempting to hope that the court will rule that states aren't bound by the 2nd Amendment. The problem is that allowing states (and cities) to ignore this part of the Bill of Rights could undermine the requirement that they abide by others.

Landmark civil liberties decisions spanning eight decades were possible only because the justices concluded that key protections of the Bill of Rights applied to the states, because those rights were "incorporated" by the 14th Amendment. Added to the Constitution after the Civil War, that amendment includes these words: "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; nor deny to any person within its jurisdiction the equal protection of the laws."

That language doesn't explicitly refer to any portion of the Bill of Rights adopted in 1791. But the court has held that many of those rights, including freedom of the press and freedom from unreasonable searches -- along with "unenumerated" ones such as a right to abortion -- are protected by the 14th Amendment's due process clause forbidding states from abridging "liberty" without due process. By contrast, the court has derived few rights from the clause referring to the "privileges" and "immunities" of citizenship.

In its decision last year, the court didn't rule on whether the 2nd Amendment applied to the states as well as to the District of Columbia, a federal entity. Lower courts have divided on the question. (Justice Sonia Sotomayor was criticized after her nomination to the Supreme Court for joining an opinion that refused to apply the amendment to the states.)

In the Chicago case, the justices are considering whether the 2nd Amendment should be applied to the states by either the 14th Amendment's due process clause (which applies to "persons") or its privileges and immunities clause (which protects only citizens). The court should say yes, even as it reaffirms its assurance in its 2008 decision that government may still impose reasonable restrictions on the right to bear arms.

This is no time for the court to start picking and choosing when it comes to the Bill of Rights.

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