[JURIST] The US Supreme Court [official website; JURIST news archive] heardoral arguments [day call, PDF; merit briefs] Tuesday in McDonald v. City of Chicago [oral arguments transcript, PDF; JURIST report] on whether the Second Amendment [text] right to keep and bear arms is incorporated as against the states by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses. The appeal challenges a ruling [opinion, PDF; JURIST report] by the US Court of Appeals for the Seventh Circuit, which upheld a Chicago handgun ban. In 2008, the Supreme Court struck down a similar handgun ban in the District of Columbia in District of Columbia v. Heller [opinion, PDF; JURIST report], but circuit courts have so far refused to extend that ruling to other municipalities’ handgun bans. Counsel for the petitioners argued:
Although Chicago’s ordinances cannot survive the faithful application of due process doctrines, there is an even simpler, more essential reason for reversing the lower court’s judgment. The Constitution’s plain text, as understood by the people that ratified it, mandates this result.
The National Rifle Association (NRA) [advocacy website] also argued on behalf of petitioners. Counsel for the respondent, the city of Chicago, argued:
The Second Amendment should not be incorporated and applied to the States because the right it protects is not implicit in the concept of ordered liberty. States and local governments have been the primary locus of firearms regulation in this country for the last 220 years. Firearms unlike anything else that is the subject of a provision of the Bill of Rights are designed to injure and kill.
The majority of justices appeared to favor petitioners’ view.
Also Tuesday, the court heard arguments in Hui v. Castaneda[oral arguments transcript, PDF; JURIST report] on whether the Federal Tort Claims Act is the sole remedy for claims regarding the care provided by Public Health Services personnel. The Court will decide if the act precludes the cause of action recognized inBivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics [opinion text]. The US Court of Appeals for the Ninth Circuit ruled that the legislation did not preclude a Bivens action, while the Second Circuit has held [opinion, PDF] that it does. Counsel for the petitioners argued:
Congress extended an absolute immunity to officers and employees of the Public Health Service. That provision, reflecting Congress’s policy judgment that the immunity was necessary to revitalize the Public Health Service, makes a claim against the United States under the Federal Tort Claims Act the exclusive remedy for injury or death resulting from the performance of medical or related function and precludes any other civil action or proceeding against the individuals by reason of the same subject matter.
Counsel for the respondents argued that a Bivens claim is not barred by statute.