A Bill of Rights battle

Acase to be argued in the U.S. Supreme Court on Tuesday poses a dilemma for supporters of civil liberties who also believe in gun control. The court will consider whether states as well as the federal government must recognize that the 2nd Amendment gives individuals the right to keep and bear arms. Such a finding would make it much more difficult to control guns at the state and local level, but it would reaffirm that states must honor the liberties found in the Bill of Rights.

For us the choice is clear: The Bill of Rights should apply to the whole country.

We were disappointed two years ago when a 5-4 majority of the court ruled that the 2nd Amendment conferred an individual right, despite language referring to the necessity of a “well-regulated militia.” The court reached that conclusion in striking down a ban on handguns in the District of Columbia. But because the district is a federal enclave, the ruling left for another day the question of whether, like other parts of the Bill of Rights, the 2nd Amendment applies to the states.

That day has now arrived, with a challenge to Chicago’s ban on the private ownership of handguns. If the court were to rule for the city and uphold the ban, it would undermine one of the most significant developments in legal history: the “incorporation” of the Bill of Rights (with minor exceptions) under the 14th Amendment to apply to the states.

Added to the Constitution after the Civil War, the amendment includes the words: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The amendment doesn’t explicitly cite any portion of the Bill of Rights, but the court has held that many of those rights -- including freedom of speech and freedom from unreasonable searches -- are protected by the clause saying that no state can deny persons “liberty” without due process of law. By contrast, the court has derived few rights from the “privileges or immunities” clause, but opponents of Chicago’s law are arguing strenuously that gun ownership is one of the privileges of citizenship. Their goal is to revive the idea, rejected by the court in the 19th century, that the clause guarantees an array of rights, including those not specified in the Bill of Rights.

Unfamiliar with these legal distinctions, most Americans probably assume that the Bill of Rights always included protections against state governments, state courts and local police forces that might mistreat or oppress them. Not so, though today the Constitution as interpreted by the court does provide those safeguards. But if the court would identify an important individual right -- in this case, the right to bear arms -- and then deny that it applied to the states, those who never accepted the incorporation doctrine might try to “de-incorporate” other rights. That’s not a risk worth taking.