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Even liberal Justices seemed to agree in today's Supreme Court oral arguments that the Second Amendment must prevent cities and states from passing certain gun regulations. The Supreme Court in 2008 ruled that the Second Amendment protects an individual's right to bear firearms, but that ruling applied to only the federal government, and today's case, McDonald v. Chicago, raised the question of whether states as well are prevented from restricting access to guns.

The 2008 case of DC v. Heller held, in a controversial 5-4 decision, that the Second Amendment to the Constitution protects not only the right of the citizens in a militia to own guns, but also the fundamental right of individual citizens to own guns. If such a right is fundamental, liberal Justices asked today, is there any way the Court can consistently say that states are allowed to infringe upon that right?

Alan Gura, the lawyer for Otis McDonald, began today's session by arguing that the Supreme Court should toss out an interpretation of the Fourteenth Amendment dating back to 1873, and should instead adopt a new justification for recognizing civil rights. But Justice Antonin Scalia admitted that even though he disagrees with the current interpretation, "even I have acquiesced in it." Scalia went further, dismissing Gura's theory as the "darling of the professoriate," since a number of high-profile law professors filed briefs urging support for Gura's side. Still, Scalia did seem to strongly favor the application of the Second Amendment to the states, arguing that the Court has found that the Constitution prevents states from outlawing "homosexual conduct and … abortion on demand," so the same logic must apply to gun rights.

Justice Ruth Bader Ginsburg asked pointed questions of Gura, saying that at the time of the ratification of the Fourteenth Amendment, there were still many Americans who were denied fundamental rights, and not just in the southern states. Gura, confused, responded, "I'm sorry?" Ginsburg then explained that she was referring to married women, who at the time did not have the right to enter into contracts. If the Fourteenth Amendment was meant to ensure no American was denied these fundamental rights, she asked, why were women excluded?

There was some agreement among the Justices, though. Justices John Roberts, John Paul Stevens, Anthony Kennedy, and Stephen Breyer all seemed to be looking for a way for the Court to rule narrowly and say that the Second Amendment applies to states, but not get into the details of what that meant. Though Justice Scalia seemed to argue in favor of strong gun rights, his opinion in DC v. Heller followed this model, finding that the Second Amendment protected an individual right but declining to say how extensive that right is. That kind of minimalist decision, one favored by Chief Justice Roberts in other cases, may carry the day when the case is decided this summer.