By its conclusion, it seemed plain that the court would extend a 2008 decision that first identified an individual right to own guns to strike down Chicago’s gun control law, widely considered the most restrictive in the nation.
While such a ruling would represent an enormous symbolic victory for supporters of gun rights, its short-term practical impact would almost certainly be limited. Just how much strength the Second Amendment has in places that regulate but do not ban guns outright will be worked out in additional cases.
The new case, McDonald v. Chicago, No. 08-1521, was a sequel to the 2008 decision in District of Columbia v. Heller, which placed limits on what the federal government may do to regulate guns. The issue before the court in the new case was whether the Second Amendment also applied to state and local laws. It appeared that at least the justices in the Heller majority would say yes without reservation because they considered the rights protected in the Second Amendment as basic as those in other provisions of the Bill of Rights.
“If it’s not fundamental, then Heller is wrong,” said Justice Anthony M. Kennedy, who was in the majority in Heller.
Justice John Paul Stevens, who wrote a dissent in Heller, suggested Tuesday that important questions remain unresolved.
“I’m asking you what is the scope of the right to own a gun?” he said. “Is it just the right to have it at home, or is the right to parade around the streets with guns?”
Heller itself struck down parts of the gun control law in the District of Columbia, then the strictest in the nation. But the majority opinion, by Justice Antonin Scalia, suggested that all sorts of restrictions on gun ownership might pass Second Amendment muster.
Justice Stephen G. Breyer, who also wrote a dissent in Heller, peppered the lawyers with questions about how the court might apply the Second Amendment to the states in a limited way. The Second Amendment says, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
Drawing on the first clause of the amendment, Justice Breyer said that a right tied to state militias might be worthy of protection, while the right to bear arms “to shoot burglars” might not be.
The lead plaintiff in the case, Otis McDonald, has said he wants to keep a handgun in his home for protection from drug gangs. Justice Breyer asked Alan Gura, a lawyer for residents of Chicago challenging its gun control law, whether the city should remain free to ban guns if it could show that hundreds of lives would be saved. Mr. Gura said no.
Justice Scalia objected to the inquiry. A constitutional right, he said, cannot be overcome because it may have negative consequences.
But Justice Scalia was less receptive to an idea that has excited constitutional scholars in recent months. “What you argue,” he told Mr. Gura, “is the darling of the professoriate, for sure, but it’s also contrary to 140 years of our jurisprudence.”
Justice Scalia was referring to Mr. Gura’s assertion that the court has been making parts of the Bill of Rights applicable to the states in the wrong way.
The Second Amendment, like the rest of the Bill of Rights, originally restricted only the power of the federal government. The Supreme Court later ruled that most but not all of the protections of the Bill of Rights applied to the states under the due process clause of the 14th Amendment, one of the post-Civil War amendments.
Many judges and scholars, including Justice Scalia, have never found that methodology intellectually satisfactory. “Due process,” after all, would seem to protect only procedures and not substance. The very name given to the methodology — substantive due process — sounds like an oxymoron.
Mr. Gura, supported by scholars all along the political spectrum, argued that the court should instead rely on the 14th Amendment’s “privileges or immunities” clause, which says that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” There is evidence that the authors of the clause specifically wanted it to apply to allow freed slaves to have guns to defend themselves.
Justice Scalia was unimpressed. He said Mr. Gura should focus on winning his case rather than remaking constitutional law.
“Why do you want to undertake that burden,” Justice Scalia asked, “instead of just arguing substantive due process, which as much as I think it’s wrong, even I have acquiesced in it?”
Unless, the justice added, Mr. Gura was “bucking for a place on some law school faculty.”
James A. Feldman, a lawyer for the City of Chicago, urged the justices to treat the Second Amendment differently from its cousins because it concerns a lethal product. “Firearms, unlike anything else that is the subject of a provision of the Bill of Rights, are designed to injure and kill,” Mr. Feldman said.
Now it was the chief justice’s turn to give advice to the lawyer before him.
“All the arguments you make against” applying the Second Amendment to the states, Chief Justice John G. Roberts Jr. said, “it seems to me are arguments you should make in favor of regulation under the Second Amendment. We haven’t said anything about what the content of the Second Amendment is beyond what was said in Heller.”