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Supreme Court Weighs Scope of Right to Bear Arms

March 2, 2010 at 12:00 AM EDT
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The Supreme Court is considering the constitutionality of Chicago's ban on handguns. Jim Lehrer speaks with Marcia Coyle of the National Law Journal about how the court's ruling could affect gun rights, especially on the state and local level.
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JIM LEHRER: The U.S. Supreme Court heard an important argument today over state and local gun regulations. At issue was the national application of a 2008 court decision that a gun law in Washington, D.C., violated the right to bear arms. The new case involved a handgun ban in Chicago.

Lawyers for both sides spoke outside the court after the hearing.

BENNA RUTH SOLOMON, City of Chicago attorney: If there is a firearm in the home, residents in that home are actually six times more likely to have a death or injury from a firearm. That is a very serious public safety threat, a very serious public health threat.

Chicago has made that choice. Different communities have made different choices, but this is the choice we have made, because it’s right for our city.

ALAN GURA, plaintiff’s attorney: The court is going to decide, hopefully, that people in the United States enjoy all of their Second Amendment rights, not some diluted, some watered-down, some shadow version of the right to keep and bear arms, but really the entire right to keep and bear arms.

Now, of course, Chicago is still allowed to regulate guns in the interest of public health and safety, but, when they do so, they need to make sure that they’re aware that there is a fundamental constitutional right at stake.

JIM LEHRER: We are joined now, as always, by Marcia Coyle of “The National Law Journal.” She was in the courtroom for today’s arguments.

Marcia, welcome.

MARCIA COYLE, The National Law Journal: Thank you, Jim.

JIM LEHRER: The facts in the Chicago case are rather straightforward, are they not?

MARCIA COYLE: Yes, they are. And this case is really a sequel to the 2008 decision in which the court held that there is an individual right to own a gun in the home for self-defense, personal safety.

That was a gun regulation in the District of Columbia, which was a federal enclave. And the court left unanswered whether that right that it recognized applied outside of the federal government and federal enclaves.

The issue before the court today, even though we’re — the case comes to the court involving Chicago and its suburb Oak Park’s gun regulations, the issue before the court is really whether the Second Amendment should be applied to states and local governments.

JIM LEHRER: What’s the Chicago — what was the Chicago argument for — for leaving the Chicago ban alone?

MARCIA COYLE: Well, Chicago was represented by James Feldman, a very experienced Supreme Court advocate.

And he told the court that the Second Amendment right here is not a fundamental right. And that’s what the court looks for when it wants to apply rights that are in the Bill of Rights to the states, is, it looks to the history and tradition of America to see if the right is deeply embedded, fundamental.

He said that states and local governments have been in charge, basically, of firearm regulation for 220 years. So, it’s — it’s not a fundamental right of the individual.

JIM LEHRER: Now, the other side argued what?

MARCIA COYLE: The other side was represented actually by two lawyers. Alan Gura, who we just saw, and Paul Clement. Paul Clement was arguing on behalf of the National Rifle Association.

And they told the court they did agree this was a fundamental right, that, if you look to the history and tradition of America, even before the Constitution, this was a right that everyone believed they had. But where the two lawyers differed is how the court should apply the right, what part of the 14th Amendment, which is what the court generally uses, should be used to make it applicable to the states.

JIM LEHRER: Rather than to — back to your point — a fundamental right that applies to everybody in the country because it’s part of the original intent of the Constitution, right?

MARCIA COYLE: Well, what happens here, Jim, is that — and it may seem odd that the Second Amendment wouldn’t apply to everybody, wouldn’t apply to the states, but the framers of the Constitution saw the Bill of Rights originally as protection against actions by the federal government.

JIM LEHRER: By the federal government?

MARCIA COYLE: Right, exactly.

MARCIA COYLE: And it wasn’t until the 14th Amendment that the Supreme Court began incorporating the Bill of Rights towards the states.

JIM LEHRER: Now, give us a feel for how the justices reacted to these two arguments today.

MARCIA COYLE: OK.

First up was Mr. Gura and Mr. Clement, who want the Second Amendment applied to the states. And they seemed to have a very sympathetic audience for the most part. The court didn’t really like Mr. Gura’s approach, but did like Mr. Clement’s approach in terms of how to apply the right.

Justice Stevens was concerned about the scope of the right that would be applied. He asked, well, are we just going to be applying what we said in Heller, an individual right to own a gun in the home for self-defense? Or is it a right to parade on the streets with guns?

Mr. Gura and Mr. Clement sort of resisted any limitation on the right. You know, they said the whole…

JIM LEHRER: It’s an absolute. It’s an absolute.

MARCIA COYLE: … the whole Second Amendment ought to be applied to the — to the states.

But the justices also made very clear that they felt that, if the Second Amendment were applied, there is going to be room for regulation by the states. And that’s what they told Mr. Feldman, who represented the city of Chicago.

And they also said that in their 2000 opinion in the Heller case, the District of Columbia case, that there will be flexibility for the states and local governments to regulate guns.

JIM LEHRER: Now, what does all this add up here? Or what does it add up to you, listening to all this today?

MARCIA COYLE: I take three things away from the arguments today. First, I think it’s highly likely that the Supreme Court, after recognizing this individual right, will apply it to the states, and not confine it to the federal government.

Second, I think, in the 2008 decision and in their comments today, many of them do agree that states and localities will have flexibility in regulating guns. And, third, there’s going to be years of litigation in the court over whether those regulations will pass constitutional scrutiny.

JIM LEHRER: And, so, for instance, if the Chicago — they say, all right, it’s OK to do some regulating, then they still have to decide, in each individual case, like, say, Chicago, D.C. or wherever, fits that.

MARCIA COYLE: Right.

JIM LEHRER: Is that right?

MARCIA COYLE: Exactly. And I also point out one other thing.

JIM LEHRER: Yes.

MARCIA COYLE: Immediately after the argument, a press release was sent out by a conservative advocacy group saying that gun rights are now going to be the new abortion issue in Supreme Court nominations. Be prepared.

JIM LEHRER: Oh, my.

MARCIA COYLE: Just as we saw with Justice Sotomayor’s hearings, where gun rights did come up, this press release said that gun rights advocates have more people, more money, more influence than even the abortion rights advocates had.

JIM LEHRER: And that’s been up to, at least in recent — recent years, been kind of a quiet issue, has it not? It hasn’t been raised, at least politically.

MARCIA COYLE: In — in Supreme Court — right, in Supreme Court nominations in particular.

JIM LEHRER: Yes.

MARCIA COYLE: But no longer.

JIM LEHRER: When should we expect a decision in this case from the court?

MARCIA COYLE: I think probably at the very end of the term, because this is a very — it seems like a pretty straightforward case. But, when I came out of the arguments, I thought it was like advanced constitutional law.

JIM LEHRER: OK.

MARCIA COYLE: There are a lot of different threads. So, I think it’s going to take them a while.

JIM LEHRER: So, that will be this summer sometime?

MARCIA COYLE: Probably by the end of June.

JIM LEHRER: End of June. OK.

Marcia, as always, thanks.

MARCIA COYLE: My pleasure, Jim.