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posted: 3/7/2010 12:01 AM

Closer look at gun rights and laws

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It is said that the reasons the Supreme Court gives for doing what it does are as important as what it does. Hence, the interest in the case the Supreme Court considered last week.

It probably will result in a ruling that extends a 2008 decision and renders dubious many state and local gun control laws. What could - but, judging from the justices' remarks during oral argument, probably will not - make the ruling momentous would be the court deciding that the ordinances at issue violate the 14th Amendment's "privileges or immunities" clause. Liberals and conservatives submitted briefs arguing that this clause was intended to be a scythe for slicing through thickets laws abridging fundamental liberties.

Until 2008, the court had never clarified whether the Second Amendment protects an individual's right to own firearms, or does it protected that right only in connection with a state's right to organize a militia?

In 2008, the court struck down a District of Columbia law that banned possession of handguns - it banned guns not kept at businesses, disassembled or disabled by locks. The court held, 5-4, that the Second Amendment protects individuals' rights.

Left unanswered was whether the amendment protects that right against restrictions by state and local laws.

The oral argument concerned ordinances in Chicago and suburban Oak Park that are indistinguishable from the D.C. law. The court probably will overturn those ordinances by holding that another part of the 14th Amendment - the guarantee that no state shall deny liberty "without due process of law" - "incorporates" the Second Amendment. The justices evinced scant interest Tuesday in resurrecting the "privileges or immunities" clause by revisiting an incoherent decision rendered in 1873.

To the drafters of the 14th Amendment, the phrase "privileges or immunities" was synonymous with "basic civil rights." But in 1873, the court held that only some of the rights in the Bill of Rights restrict states by being "incorporated" into the 14th Amendment's "due process" clause.

Since 1897, the court has held, with no discernible principle, that some rights are sufficiently fundamental to be "incorporated" but others are not. This bears the oxymoronic name "substantive due process." Substance is what process questions are not about.

If the court now "incorporates" the Second Amendment right via the "due process" guarantee, that will be progress because it will enlarge the sphere of protected liberty. And even Justice Antonin Scalia, who recognizes that "substantive due process" is intellectual applesauce, thinks it is too late to repudiate 137 years of the stuff. Still, three points argue for using the "privileges or immunities" scythe against the two gun ordinances.

First, protecting the individual's right to keep and bear arms for self-defense was frequently mentioned by those who drafted and ratified the 14th Amendment.

Second, the central tenet of American political philosophy is that government is instituted not to bestow rights but to protect pre-existing rights. In its 2008 decision, the court affirmed the Second Amendment did not grant a right, it "codified a pre-existing right."

Third, "privileges or immunities" are all those rights that were understood to be central to Americans' enjoyment of the blessings of liberty.

Liberals might hope and conservatives might fear that a revivified "privileges or immunities" clause wielded by liberal justices would breed many new "positive rights" - to welfare, health care, etc. But conservatives know that "substantive due process" already has such a pernicious potential. And they believe that if - a huge caveat - it remained tethered to the intent of its 19th-century authors, the "privileges or immunities" clause would be useful protection against the statism of the states.

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