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Tuesday's hourlong arguments focused mainly on the whether the Second Amendment should be "incorporated" or applied to state and local laws like most of the other amendments in the Bill of Rights.
James Feldman, the attorney for the city of Chicago, told the justices that gun laws are different. "Firearms are designed to injure and kill," Feldman said.
That argument brought skepticism from several conservatives on the bench.
"Your position is that a state or local government could completely ban all firearms?" Justice Samuel Alito asked Feldman.
Justice Antonin Scalia said the court's 2008 ruling over Washington's law applied this time, too. "The function of what was codified" in the Second Amendment, he said, "was to enforce the traditional right of the people to bear arms."
Chief Justice
John Roberts downplayed concern of a sweeping ruling that might cripple cities from finding ways to prevent violence. The extent of gun rights are "still going to be subject to the political process," Roberts said.
A number of others, led by Justice Stephen Breyer, sought to limit the court's ruling striking the handgun ban in Washington. That decision offered at least partial constitutional validation to citizens seeking the right to possess one of the most common types of firearms in their homes.
The Justice Department estimates as many as 275 million guns are in the United States. In 2005, three-quarters of the 10,100 homicides by firearms nationwide were committed with handguns.
"Chicago says that their gun law has saved hundreds, including -- and they have statistics -- lots of women in domestic cases,"
Breyer said. "When you have the First Amendment, or some of the other amendments, there is always a big area where it's free speech versus a whole lot of things, but not often free speech versus life. When it's free speech versus life, we very often decide in favor of life."
Underpinning the legal basis for the
court's jurisdiction in this appeal is a complex reading of the 14th Amendment, passed in the wake of the Civil War to ensure all citizens -- including newly freed slaves -- were protected from state laws that might restrict their fundamental rights.
One part ensures states cannot deprive people of "life, liberty, or property, without due process of law." That has been commonly applied by federal courts when it comes to disputes over basic rights, so-called "ordered liberty" cases. Such cases include affirming the right to abortion and to homosexual sex.
But another rarely used provision also prevents states from depriving the "privileges or immunities" of all citizens. The specific question for the high court in the
Chicago case is whether the "immunities and privileges" clause should now be used to overturn the handgun ban. An 1873 ruling limited use of that provision when striking down a variety of state laws.
Alan Gura, the attorney for Chicago activist McDonald, has promoted a new reading of the clause in his lead role representing gun owners.
However, the current court appeared reluctant to revive that argument, seemingly content to apply the "due process" standard to Chicago's handgun law. The National Rifle Association supports that position.
The constitutional theories are dense, but some legal scholars have said they think if the high court embraces this "privileges and immunities" clause, it could open up to fresh review a huge range of issues, such as property rights and same-sex marriage.
Courts have generally upheld other cities' restrictions on semiautomatic weapons and sawed-off shotguns. The high court's conservative majority has in recent years upheld a California ban on assault rifles, similar to a federal ban that expired in 2004.
Forty-four state constitutions protect their residents' right to keep weapons, according to a brief filed by 32 state attorneys general in support of the individual weapons owners in the current appeals.
Some constitutional experts have noted the Bill of Rights had traditionally been applied by courts only to the federal government, not to local entities. It was not until the past half-century that the justices have viewed free speech, assembly and the press -- among other rights -- as individual in nature, and fundamental to liberty, superseding in many cases the power of states.
There have been limits. The high court repeatedly has refused to extend to states the Fifth Amendment requirement that persons can be charged with serious crimes only by "indictment of a grand jury."