Wednesday, September 30, 2009

Supremes Grant Cert. in Chicago Gun Ban Case

The U.S. Supreme Court has granted certiorari to decide whether the second amendment applies to states and municipalities. The Court had several cases to choose from, given the split in the circuits, but chose the case involving Chicago's ban on hand-guns -- arguably the most restrictive law of its kind in the country.

Notably, this case is brought by Alan Gura, the same attorney who won Heller, last Term's opinion that held that the second amendment is an individual right rather than a collective right. Heller concerned a gun ban in the District of Columbia, a federal enclave, and therefore could be limited to federal gun bans.

Judge Larry Silberman (who wrote the D.C. Circuit opinion in Heller which the Supreme Court affirmed) notes for National Review that the Court can apply the second amendment to the states without incorporating it into the 14th amendment. The plain text of the second amendment is not limited to the issue of Congress infringing upon the right to bear arms; the language is much broader: ". . . the right of the people to keep and bear Arms, shall not be infringed."

The use of the passive voice suggests the right "shall not be infringed" applies to any level of government, including states and local governments.

For what it's worth, while on the Second Circuit, Justice Sonia Sotamayor voted that the second amendment is not incorporated into the 14th amendment.

The Court is considering incorporation not just through the due process clause of the 14the amendment, but also through the "privileges or immunities clause."

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