Because the Second Amendment has never been applied to the states, the ruling could only be enforced against the national government and in federal enclaves like the District of Columbia.
A similar handgun ban is at issue in the Chicago case. But before judges can consider the constitutionality of the ban, the Supreme Court must decide whether the same Second Amendment rights it imposed in the Heller case will also apply in Chicago and across the country. (For Monitor commentary, click here.)
There are two possible ways for the high court to extend Second Amendment protections to state and local governments. Both are found within the text of the 14th Amendment.
Questions and comments by four of the justices who formed the five-justice majority in the Heller case suggest a preference for using the due-process clause of the 14th Amendment.
'Why are you asking us to overturn 140 years of ... law?'
The lead legal brief in the Chicago case, filed on behalf of the Second Amendment Foundation, had suggested that the high court bypass the traditional due-process clause approach and instead chart a wholly new constitutional path by relying on the 14th Amendment’s “privileges and immunities” clause.
The bold legal argument called for overruling high court precedents dating to 1873, 1876, and 1886. It was an apparent effort to try to woo the constitutional affections of Justice Antonin Scalia, an outspoken critic of reliance on the due-process clause as a source of power for the high court to establish constitutional rights.
Analysts were watching closely to see how the justices – and Justice Scalia in particular – would react to this gambit.
It did not go well.