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Who Has the Right to 'Bear Arms'?

More than 200 years after the adoption of the Bill of Rights, the Supreme Court may finally clarify how far second amendment rights go

By Patricia Smith


Click for graphic on gun ownership by state
Otis McDonald is fed up. His Chicago home has been broken into three times, and he wants to be able to keep a handgun in his house for self-defense. He can't, however, because Chicago bans the possession of handguns. McDonald, who is 76, is challenging the ban, saying it violates his Second Amendment rights, and the Supreme Court is now considering his case, McDonald v. Chicago. The outcome of this closely watched case could have a powerful impact on the rights of individuals in all 50 states to own guns and the extent to which state and local governments can pass laws restricting gun ownership.

McDonald v. Chicago is actually the sequel to a landmark 2008 case in which the Supreme Court ruled for the first time that the Second Amendment's "right to bear arms" applies to individuals, not just to state militias, as many had interpreted it for more than 200 years. In striking down a handgun ban in Washington, D.C., in District of Columbia v. Heller, the Court established an individual right to keep a handgun at home for self-defense.

That 5-4 ruling, however, applies only to places under federal jurisdiction, like Washington. The current case will determine if that individual right to bear arms applies everywhere else.

When McDonald was argued before the Supreme Court in March, comments from the Justices suggested that a majority are prepared to strike down Chicago's ban and rule that the Second Amendment does apply to the states.

One of the most disputed passages in the Constitution, the Second Amendment states, in its entirety: "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 Bill of Rights

The first 10 amendments to the Constitution, known as the Bill of Rights, were adopted in 1791 in response to fears that the Constitution gave the new federal government in Washington too much power. The Bill of Rights was originally a restriction on only the power of the federal government, not the states.

It was only after the Civil War, with the passage of the 14th Amendment, that the Supreme Court began to apply most, but not all, of the protections in the Bill of Rights to the states. (The Court has ruled, for example, that the right to a trial by jury does not extend to state courts.)

For three decades, starting in the 1960s, the story of gun control was one of notorious crimes and laws passed in response, beginning with the 1968 federal gun-control law that followed the assassinations of Martin Luther King Jr. and Senator Robert F. Kennedy, who was running for President. In 1994, spurred in part by an assassination attempt on President Ronald Reagan years earlier, Congress created a national system of background checks for gun buyers and passed an assault-weapons ban (which was allowed to expire in 2004). Today, there are 280 million firearms in private hands in the U.S., and about a third of American households have reported having a gun at home (see chart). State and local gun-control measures range from requiring safety locks to outright bans on certain types of ammunition or on gun ownership for felons or the mentally ill.

Advocates of gun-control laws say that much has changed since 1791, when people kept muskets to be ready for militia service and to hunt for their food. And modern weapons are far deadlier than those of the 18th century: They fire more powerful ammunition and can deliver dozens of shots at a time. In 2006, almost 31,000 Americans died from gun violence, more than in any other country.

Gun-rights groups—the most powerful of which is the National Rifle Association—argue that any restrictions on gun ownership infringe on the rights of law-abiding citizens.

"The only universe of people affected by gun-control laws are law-abiding Americans, since most criminals obtain their firearms on the black market," says Andrew Arulanandam of the N.R.A.

Loosening State Gun Restrictions

Amid fears in the gun-rights community that the Obama administration is about to tighten gun restrictions, a number of states have recently loosened their gun laws. (In fact, the President has been largely silent on gun control, and has signed bills allowing guns on Amtrak trains and in national parks. "We have had some successes, but we know that the first chance Obama gets, he will pounce on us," says Wayne LaPierre, head of the N.R.A.)

Montana and Tennessee passed laws exempting themselves from federal regulation of firearms and ammunition made, sold, and used within their borders. (Federal regulators say federal law supersedes such state measures; the Montana law is already being challenged in court.)

Virginia lawmakers have approved a bill that allows people to carry concealed weapons in bars and restaurants that serve alcohol. This change comes less than three years after the shooting at Virginia Tech that claimed 33 lives and prompted a renewed push for tighter gun control. Meanwhile, lawmakers in Arizona and Wyoming are considering whether to allow residents to carry concealed weapons without a permit.

There's also been a push recently among gun-rights activists to exercise their right to carry guns openly in states that allow it. Starbucks, in particular, has been a target for gun owners in Virginia and California, who have walked in and ordered their lattes with handguns strapped to their waists. Businesses can, in fact, ban guns from their premises, even in "open carry" states; California Pizza Kitchen, for example, has banned guns in its restaurants, while Starbucks has not.

Why Gun Control Will Likely Survive

Even if the Supreme Court does use the McDonald case to extend Second Amendment rights to the states by overturning Chicago's handgun ban, it will not necessarily mean that all gun-control laws are unconstitutional.

"Even when we've applied provisions of the Bill of Rights to the states, we have allowed the states substantial latitude to impose reasonable regulations," noted Justice Anthony M. Kennedy during oral arguments. "Why can't we do the same thing with firearms?"

Justice Antonin Scalia made a similar point in the Heller ruling two years ago, suggesting that all sorts of restrictions might pass Second Amendment muster, including, "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."

Comments like these have been cause for optimism among gun-control advocates. As Jonathan Lowy of the Brady Campaign to Prevent Gun Violence puts it, "The Court went to great lengths to state that the Heller decision is not an impediment to common-sense gun laws."

The specifics of what kind of restrictions are constitutional and which are not will likely take years—and many more court cases—to hammer out.

"There will be a lot of litigation," predicts Adam Winkler, a law professor at the University of California, Los Angeles. "But the vast majority of gun-control laws are going to survive."

(The New York Times Upfront, Vol. 142, April 19, 2010)