A 5-4 Supreme Court decision last year did say that the U.S. Constitution protects an individual right to own a handgun. But the majority opinion never concluded that the Second Amendment applied to states; it didn't say what kind of laws beyond a flat ban are acceptable or unacceptable; it didn't even say what kind of standards lower courts should apply when evaluating anti-gun laws.
One result was to leave lower court judges scratching their heads about which laws were permissible. Another was to create what one pro-gun attorney last week dubbed an "apartheid of civil rights," where gun rights vary by state.
The current case before the justices arose out of Chicago's restrictive gun laws, which prohibit anyone from possessing firearms -- even in their homes -- "unless such person is the holder of a valid registration certificate for such firearm." That's virtually identical to the Washington, D.C. law that the court said was unconstitutional last year, and violations in both cities include criminal penalties.
Deciding whether or not the Second Amendment restricts state and local governments might sound straightforward enough. After all, the First Amendment starts out by saying "Congress shall make no law," but the Supreme Court has interpreted that language to prevent states (and even state universities) from engaging in censorship.
So if much of the rest of the Bill of Rights applies to state governments -- a concept called "incorporation" -- why not the Second Amendment as well?
This topic sounds like one that only a law professor would love, but in the last half-century or so, the Supreme Court has ruled that only "fundamental" rights crucial to "ordered liberty" are incorporated. (A wag might say that the justices were simply picking and choosing portions of the Bill of Rights that they find attractive while ignoring others. Call it the à la carte school of constitutional law.)
The city of Chicago, in a 43-page brief submitted to the Supreme Court, has argued that the right to own a firearm is not fundamental: "In urban environments, where handgun abuse is so rampant, the protection of a right to handguns simply because they are in common use undermines, rather than guarantees, ordered liberty. It is, instead, the very governmental power to protect residents that is critical to the concept of ordered liberty, since enforcing handgun control laws can make an enormous difference in curbing firearms violence."
In last year's Heller decision, both the majority and the dissenters reviewed the history of ratification of the Second Amendment. This time, when reviewing Chicago's ordinance, they'll likely look to the debate over the 1868 adoption of the Fourteenth Amendment (which is what provides an avenue for the federal Bill of Rights to apply to the states).
Sen. Jacob Howard's speech to the U.S. Senate in 1866 provides a glimpse into what was going through the minds of the people who actually drafted the Fourteenth Amendment. Howard said:
To these privileges and immunities, whatever they may be – for they are not and cannot be fully defined in their entire extent and precise nature – to these should be added the personal rights guaranteed by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right pertaining to each and all of the people; the right to keep and bear arms; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments. (Emphasis added.)
Stephen Halbrook, a lawyer and historian who has written a book titled Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, has extensively reviewed the debate in the U.S. Congress over extending the right to bear arms to the newly-freed slaves after the Civil War. He concludes: "The framers of that amendment understood from hard experience that the rights to personal security and personal liberty are inseparable from the rights to self defense and to keep and bear arms."
The Fourteenth Amendment was enacted largely to overrule the Supreme Court's infamous Dred Scott v. Sandford (1856) case, which said that if the "large slaveholding states regarded (blacks) as included in the word citizens," then they would be granted rights including the ability to travel freely, the right to speak freely, and "to keep and carry arms wherever they went."
It also was intended to eliminate the notorious black codes, which in some states provided harsher criminal punishments for blacks than whites, regulated domestic relations of blacks, and, in the words of the Supreme Court in a 1964 decision, meant blacks "were not allowed to bear arms." (Justice Antonin Scalia's opinion in the Heller case echoes this, saying: "Blacks were routinely disarmed by Southern States after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks' constitutional right to keep and bear arms.")
There's no guarantee, of course, that the Supreme Court's eventual decision in the current case, called McDonald v. Chicago, will focus on the congressional debates of some 120 years ago. But if you're the betting type, I'd give you good odds that it will.
And here's another bet: If the Supreme Court justices can define a fundamental right to privacy that "is broad enough to cover the abortion decision" and render certain state laws invalid -- even though the words "privacy" and "abortion" appear nowhere in the text of the U.S. Constitution -- would they really want to risk a public outcry by ruling a well-documented right to self-defense is somehow less fundamental?
I'm betting the answer is no. Not even the Supreme Court likes to deviate too much from public opinion and academic consensus, and when you have two-thirds of the states and three-quarters of Americans holding broadly pro-gun views, this would be one grassroots revolt that the justices have no interest in creating.
PS: The next brief from Alan Gura, who is representing the Chicago residents with the help of the Second Amendment Foundation, is due November 16. Chicago's brief is due December 16; the plaintiffs' reply brief is due January 15. Gura said that he expects oral arguments to take place in February 2010.
Declan McCullagh is a correspondent for CBSNews.com. He can be reached at firstname.lastname@example.org. You can bookmark the Taking Liberties site here, or subscribe to the RSS feed.