The U.S. Supreme Court on Wednesday waded back into the contentious debate over the Second Amendment, agreeing to consider a Chicago case that will answer a question it left unanswered last year: whether the individual right to bear arms applies against state and local gun restrictions as well as federal.
The case, McDonald v. Chicago, could also intensify a debate within the Court and academia about the best way to apply or incorporate rights embodied in the U.S. Constitution to states. “This case is about a lot more than guns,” said Doug Kendall of the Constitutional Accountability Center, a liberal group that favors incorporation of rights based on the privileges or immunities clause of the 14th Amendment.
Acting on pending petitions filed before and during its summer recess, the Court announced it would add 12 new cases to its argument docket, including the Chicago case, a sequel to the landmark D.C. v. Heller decision from June 2008. In Heller, the Court for the first time declared an individual right to bear arms. But because the case was from the District of Columbia, a federal enclave, the Court declined to rule whether the right also applies when states and localities enact restrictions on gun use.
The Chicago case was brought by residents who invoked Heller to challenge that city’s long-standing ban on handgun registration, first enacted in 1982. The U.S. Court of Appeals for the 7th Circuit upheld the ban, refusing to apply Heller and citing 19th century Supreme Court precedents.
Gun-control supporters minimized the importance of the Court’s action Wednesday. “Even if the Court rules that the right is incorporated, it may have surprisingly little impact,” said Dennis Henigan, vice president of the Brady Center to Prevent Gun Violence. The reason, Henigan said, is that in the Heller decision, the Court emphasized that even though there is an individual right to bear arms, many restrictions that fall short of a total ban would be constitutional. In litigation since Heller, Henigan said, almost all challenges to gun laws and prosecutions have failed.
Representing the Chicago residents is Alan Gura of Gura & Possessky of Alexandria, Va., the upstart attorney who first mounted the District of Columbia challenge that resulted in the Heller decision. Gura will argue that the right to bear arms applies to state restrictions, not only because of the 14th Amendment’s due process clause — the traditional vehicle that has been used for applying other individual rights to the states — but the privileges or immunities clause as well. That clause, which bars states from abridging “the privileges or immunities of citizens of the United States,” has been viewed as a dead letter since the Court’s Slaughterhouse Cases of 1873.
Liberal groups in recent years have begun advocating a new look at that clause as a more solid foundation for individual rights than the due process clause, which has been weakened and narrowed over time. “This will be the first time since the 1940s that the Court has taken a serious look at revisiting the clause and restoring it to its original meaning,” Kendall said.
Significantly, the Court did not act on a companion Chicago case filed by the National Rifle Association, which placed less emphasis on the privileges clause. Also on Wednesday, the Court took no action on Maloney v. Rice, another Second Amendment incorporation case challenging a New York law. Justice Sonia Sotomayor ruled in the case while on the U.S. Court of Appeals for the 2d Circuit. Presumably the Maloney and NRA cases will await a ruling in the Chicago dispute.
The Court also today granted the first employment law case of its new term, Lewis v. Chicago. At issue is the deadline for filing disparate-impact workplace discrimination cases under Title VII of the Civil Rights Act of 1964 — should it be 300 days after the discriminatory practice is announced, or 300 days after the employer implements the practice? The NAACP Legal Defense and Educational Fund filed the petition on behalf of 6,000 African-Americans who applied for positions as firefighters in Chicago. The district court found discrimination, but the U.S. Court of Appeals for the 7th Circuit ruled the claims were filed too late. The Obama administration, invited to give its views on the case, came in on the side of the firefighters.
Fund president John Payton said, “The Supreme Court should apply a common-sense reading of Title VII and hold that discrimination occurs each time an employer uses a selection practice that unfairly excludes qualified African-American applicants for a job.”
Among the other petitions the Court agreed to hear are Holder v. Humanitarian Law Project and a countersuit, Humanitarian Law Project v. Holder. These cases test the constitutionality under the First and Fifth amendments of a law that criminalizes a broad range of “material support” for groups designated as terrorist organizations. The law’s wording is “insufficient to provide constitutionally adequate notice to ordinary citizens where criminal liability for speech and association is on the line,” said Georgetown University Law Center professor David Cole. Cole represents individuals accused under the law of supporting terrorist groups advocating a Kurdish state in Turkey and a Tamil state in Sri Lanka.
The justices also added to a substantial number of cases in the new term that deal with the practice of law. In Astrue v. Ratliff, the court will delve into the language of a major federal fee-shifting law — the Equal Access to Justice Act (EAJA) — to decide whether fee awards are paid to attorneys or to their clients. The Obama administration argues that EAJA fees go to prevailing clients, not to their attorneys, and are subject to offsets for unrelated debts owed by clients to the government. The law states that a court may “award to a prevailing party other than the United States fees and expenses.”
Catherine Ratliff of Hot Springs, S.D., successfully challenged the Social Security Administration’s denial of benefits to her client in 2005. Fees and expenses amounting to just more than $2,200 were awarded under the EAJA. Rather than pay the fees, the Treasury Department notified Ratliff’s client that the total federal award was being applied to a debt she owed. Ratliff filed suit to recover the fees and expenses. The U.S. Court of Appeals for the 8th Circuit held that EAJA fees cannot be reduced to satisfy a prevailing party’s debt owed to the government, because the fees are awarded to the party’s attorney.
“The issue is not limited just to Social Security matters and EAJA,” said Ratliff’s counsel, James Leach of Rapid City, S.D. “The prevailing-party language in EAJA is basically in all fee-shifting statutes.”
A version of this article first appeared at Blog of Legal Times.
