Two years ago, when the U.S. Supreme Court was considering the constitutionality of the District of Columbia’s ban on handgun possession, the Chicago board of education joined a friend-of-the-court brief urging the justices to uphold the ban.
The nation’s third-largest school system told the court in that case that 29 Chicago students had been killed in firearm-related violence in the previous year (though mostly on the streets, not in schools), and that thus the justices should be mindful it was “imperative” that states be free to regulate firearms.
In its 2008 decision in District of Columbia v. Heller, the court ruled 5-4 that the Second Amendment protected a Washington resident’s right to possess a gun unconnected to the militia. But since Heller involved the nation’s capital, a federal enclave, the ruling left open the question of whether the Second Amendment would be applied to the states--or “incorporated,” in constitutional parlance.
The court took up that question today in McDonald v. City of Chicago (Case No. 08-1521). And since the new case involves handgun bans adopted by Chicago and a suburb, Oak Park, Ill., it was no surprise that the Chicago school system again felt the urge to speak up to the justices.
“Gun violence has a profoundly negative impact on the educational opportunities of children in large urban centers like Chicago,” says the school system’s brief on the side of the city of Chicago. “Children who live in terror of gun violence find it difficult to shed that fear at the schoolhouse door. They struggle to concentrate on their schoolwork and some see no reason to study, doubting they will live to adulthood. Gun violence also imposes extraordinary burdens on school administrators, teachers, and security personnel, who must be vigilant to keep guns out of schools and to keep children safe during the school day.”
Curiously, like its brief two years ago, the school system’s brief in McDonald also says that 29 Chicago schoolchildren had been killed in gun-related violence in the previous year, the exact same tally as the year preceding its brief in Heller. And both briefs noted that since 2000, “more than 100 guns have been confiscated on school grounds.” (Some cutting and pasting between briefs, perhaps?)
The school system’s brief was one of dozens filed on both sides of the case.
In the Supreme Court today, the focus was on lofty constitutional arguments surrounding the “incorporation” question and not so much on practical concerns or statistics. It appeared highly likely that the court was prepared to incorporate the Second Amendment to the states, although even some of the court’s conservatives, who made up the majority in Heller, suggested that such a move would not necessarily mean that the states wouldn’t still have some leeway to regulate firearms.
The question of gun regulation is “still going to be subject to the political process if the court determines that [the Second Amendment] is incorporated in the [14th Amendment’s] due-process clause,” Chief Justice John G. Roberts Jr. told the lawyer representing the city of Chicago.
Justice Ruth Bader Ginsburg, who was in the minority in Heller, at one point today sought to remind everyone that the majority opinion in that case, by Justice Antonin Scalia, “allowed for reasonable regulation, and it gave a few examples.”
She got sidetracked before she got to those examples, but she probably had in mind Justice Scalia’s statement in Heller that the ruling “should not be taken to cast doubt on long-standing prohibitions on 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.”
The case is expected to be decided by late June.
A version of this news article first appeared in The School Law Blog.