Monday, October 19, 2009

U.S. Supreme Court: Gun control on culture war's front burner

Published: Oct. 18, 2009 at 2:15 AM

WASHINGTON, Oct. 18 (UPI) -- As the U.S. Supreme Court makes its stately way into the new term, a case over the horizon promises to hit the 20,000 gun control laws in this country with the impact of a 9mm round.

The prep work came last year in District of Columbia vs. Heller. A narrow 5-4 majority struck down the gun control law in the nation's capital, and for the moment settled an argument over just what the Second Amendment to the Constitution, part of the Bill of Rights, actually means.

The Second Amendment reads, "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."

The argument has centered on whether that language means a state militia has a right to bear arms, or whether there is an individual constitutional right to have a weapon.

The Supreme Court majority, in an opinion written by conservative Justice Antonin Scalia, said it means there is an individual right to that Glock or Beretta.

The gun control debate can be an emotional one for those on either side of the fence, such as members of the National Rifle Association or the anti-handgun Brady Campaign. Many see it as a red state, blue state issue, part of that "culture war" or "Kulturkampf" characterized by Scalia in dissent in 1996, and by conservative Patrick Buchanan in a series of speeches.

Apparently, no issue provokes more fear in members of Congress with rural constituencies. Analysts in West Virginia have pointed out that the state voted Republican in the 2000 and 2004 presidential races, ensuring George W. Bush's victory, in part from fear of gun control.

Scalia, however, said it all comes down to the meaning of words.

The Washington gun law banned handgun possession "by making it a crime to carry an unregistered firearm and prohibiting the registration of handguns," and providing "separately that no person may carry an unlicensed handgun." It did allow the police chief to issue 1-year licenses, but required those few authorized to own a firearm to keep them unloaded and dissembled, or made safe by a trigger lock.

Scalia's opinion, handed down last June 26, said the handgun ban and the trigger lock requirement violated the Constitution: "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home."

But what about that clause dealing with the militia?

Scalia calls it the "prefatory clause," and calls the second part of the amendment, the one dealing with "the right of the people," the "operative clause."

The prefatory clause clarifies the amendment -- sets up a justification for it -- but "apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause," Scalia said.

Moreover, the right to bear arms was not initially established in the Second Amendment, Scalia wrote. The amendment "codified a pre-existing right" dating back to the days when the Catholic English King James II tried to keep Protestants from obtaining weapons. Later, William and Mary guaranteed Protestants the right to bear arms in the Declaration of Rights, which became the English Bill of Rights.

But government is not powerless when it comes to regulating arms, the court majority said in the opinion's syllabus:

"Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the amendment or state analogs. The court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

As sweeping as the opinion in Heller is, advocates of gun rights and gun control are waiting for the other shoe to drop this term.

Heller recognized an individual's right to bear arms, but the Supreme Court still has to decide whether Heller should be extended beyond federal jurisdictions such as the District of Columbia to "every city, county, and state in the nation," the Christian Science Monitor reports.

That question is central to McDonald vs. Chicago, a challenge to that city's gun control registration restrictions, which the high court has agreed to hear later this year. Though not yet scheduled, the case should be heard sometime in January or later, with a ruling handed down before the end of the term in late June.

Among the questions in the case: How should the Bill of Rights be applied to the states, as opposed to the federal government -- in the early days of the Republic, it was assumed that the first 10 amendments to the Constitution applied only to the federal government. It was only later that the courts, including the Supreme Court, used the 14th Amendment to apply them to state and local governments.

Legal Times correspondent Tony Mauro points out a group of liberal and conservative academics are pressing for a change, a "new pathway," in the Chicago challenge.

For the most part, in the 20th century the courts have used the 14th Amendment's "due process" clause -- due process in its simplest meaning essentially describes fair treatment in the legal process -- to make the states honor individual rights.

But, "that new pathway runs through the long-dormant 'privileges or immunities' clause of the 14th Amendment," Mauro reports. "In the view of scholars and historians of all political stripes, the clause provides the strongest legal foundation for applying the Bill of Rights to the states. The language -- 'No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States' -- is broad and clear, advocates say, and could be used to incorporate the entire Bill of Rights to the states, wholesale."

Legal niceties aside, McDonald vs. Chicago should have a real impact on the streets, especially if the five-justice majority in Heller decides the judgment in that case should apply nationwide.

The National Rifle Association says there are 20,000 "gun control" laws in states and local communities.

So far, no police department has filed a friend-of-the-court brief either supporting or opposing the Chicago challenge at the Supreme Court.

No comments: