People started lining up outside the U.S. Supreme Court a full day in advance of Tuesday's argument. Some even flew across the country so that they could be in the chamber. The focus of all this attention is the latest gun-rights case, testing whether the Second Amendment right to bear arms limits what kinds of gun regulations can be adopted by state and local governments.
Two years ago, the Supreme Court ruled for the first time that the right to bear arms is an individual right, not, as the court had long implied, a right aimed at protecting state militias from federal control. The court's 5-to-4 ruling struck down a ban on handguns in the District of Columbia. But because the nation's capital is a federal enclave, the ruling only applied to federal restrictions on guns. On Tuesday, the court examined a similar ban on handguns in Chicago to determine whether the same rules apply to state and local governments.
Chicago's handgun ban was challenged by Otis McDonald, a retiree who says his house has been broken into three times. "We should have at least a deterrent," he said, "and I think that will give would-be robbers something to think about when they get ready to break into a house."
But Chicago's counsel Benna Solomon, speaking on the steps of the court, countered that under the Constitution, it is state and local governments that have the duty to protect citizens and the right to determine, through the democratic process, how best to do that.
"Handguns are the weapon of choice in this country for homicide, suicide and other armed violence," she said. "Chicago has reacted to that choice by making them illegal. Long guns are allowed. They do not present the same risks. It's real tough to tuck one into your pocket and go out onto the streets for a drug deal."
Inside the courtroom, Alan Gura, representing McDonald, rested his argument on a novel constitutional argument, at least in modern times. The argument, pushed by a coalition of liberal and conservative scholars, would broaden both the rights specified in the Constitution and the unspecified rights of citizenship. Questioned by Chief Justice John Roberts, Gura acknowledged though, that for the court to adopt his theory, the justices would have to reverse key cases dating back 140 years. Justice Antonin Scalia, the author of the court's 2008 pro-gun decision, asked Gura if he couldn't get the same result via the more accepted route of just applying the court's recent gun ruling to the states. Yes, agreed Gura, that would do the trick.
Scalia bluntly inquired: "Why are you asking us to overrule 140 years of prior law, unless you are bucking for a place on some law school faculty?"
Justice John Paul Stevens asked whether there would be a right to own a gun for self-protection without the Second Amendment.
Yes, Gura replied.
Is it "just the right to have it at home," Stevens continued, or "the right to parade around the streets with guns?"
Gura didn't answer the question.
Justice Stephen Breyer opined that the right to bear arms is different from other provisions in the Bill of Rights, because it involves a threat to human life. "When it's free speech versus life," said Breyer, "we very often decide in favor of life. Here, every case will be, on one side, guns; on the other side, human life." How, asked Breyer, "are federal judges, rather than legislatures, supposed to carry this out?"
Following Gura to the lectern was lawyer Paul Clement, representing the National Rifle Association.
He said the argument for applying the Second Amendment to the states is "remarkably straightforward." Clement contended that the Second Amendment right to bear arms is a fundamental right that should limit state action just as the First Amendment restricts state limits on speech.
Justices Anthony Kennedy and Stevens both observed that not every provision of the Bill of Rights is applied in its entirety to the states. Stevens noted that the court, for example, has not required unanimous jury verdicts in state criminal trials.
Clement replied that the Sixth Amendment right to jury trial "is a bit of an outlier" because it involves "questions of process."
Defending Chicago's handgun ban, lawyer Jim Feldman told the justices that "firearms [are] unlike anything else" in the Bill of Rights because they are "designed to injure or kill." In addition, he said, firearms are not essential to the concept of ordered liberty; many democratic countries have rejected them entirely.
Scalia pointed out that many democratic countries have rejected jury trials, too.
Kennedy said that if the right to bear arms is not fundamental, then "our decision" two years ago was "wrong."
Chief Justice Roberts advised Feldman: "All the arguments you make against" applying the Second Amendment to the states are arguments "you should make in favor of regulation." Roberts said that even though there is a right to bear arms, for example, states could well argue that there is no right to carry a concealed weapon.
Justice Sonia Sotomayor questioned what in this nation's structure or history makes the right to bear arms not "fundamental enough" to apply to the states.
Feldman replied that 44 states have their own constitutional provisions protecting the right to bear arms, but many specify that right is subject to regulation.
"If that regulation includes banning entirely," Scalia noted, "that would make a nullity" of the Second Amendment.
Kennedy observed that even where the court applied provisions of the Bill of Rights to the states, the justices have allowed the states "substantial latitude" to "impose reasonable regulations. Why can't we do the same thing with firearms?"
Feldman responded that Chicago allows long guns in the home, but not handguns, "as the best way to achieve public safety."
By the end of Tuesday's argument, though, the Chicago ban looked like it was in trouble. But at the same time, there appeared to be a majority of justices who want to signal they will support other strong regulations on guns.