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| 10/9/2009 6:59:00 AM | Email this article • Print this article | Gun rights headed back to the Supreme Court
Decision could reach far beyond Second Amendment
Just a little more than 15 months after the United States Supreme Court struck down a handgun ban in Washington, D.C., as unconstitutional, the issue of whether individual Americans have a Second Amendment right to own guns is headed back to the High Court.
At issue this time is a handgun ban in Chicago, and a decision on its constitutionality could ultimately define not merely what gun prerogatives Americans have but what scope and authority state and local governments have to limit individual liberty on a broad range of matters, from abortion to gay marriage.
In McDonald v. City of Chicago, the Second Amendment Foundation, the Illinois State Rifle Association and four Chicago gun owners, including Otis McDonald, have challenged a handgun ban similar to the one the Supreme Court threw out in Washington, D.C., in June 2008.
The Chicago ban is still in place because the High Court's ruling in Heller v. Washington applies only to federal law and not to state statutes and local ordinances. Simply put, because Washington is a federal district, the ruling did not extend to state and municipal jurisdictions.
So while Washington, D.C., residents have a constitutional right to keep and bear arms individually, the issue has not been settled for the rest of the nation. In the view of Virginia lawyer Alan Gura, of Gura & Possessky - the same attorney who represented Heller - it's about time it is settled.
"The freedoms we enjoy as Americans are secured to us against violation by all levels of government," Gura said. "State and local politicians should be on notice: the Second Amendment is a normal part of the Bill of Rights, and it is coming to your town."
His prognostication is most likely on the money. Most legal experts expect the justices to uphold Second Amendment rights in Chicago, and thus in the rest of the country, just as they did in Washington, D.C., especially since Chicago's ban is virtually identical to the one booted in the Heller case.
To be sure, the ideological balance of power has not shifted on the High Court, though justice David Souter retired and Sonia Sotomayor replaced him.
While Sotomayor has ruled at the appellant level that the constitution does not restrict the authority of states to curb gun rights, based on Court precedent, Souter dissented from the majority in the Heller case, so gun-rights advocates did not lose a vote when he left the bench.
The case is expected to be argued in February, with a decision by the end of next June. Thirty-four states - but not Wisconsin - have filed amicus briefs asking the court to strike down the handgun ban.
Chicago first enacted the prohibition in 1982, along with other gun regulations, such as an annual firearms tax, declaring that handguns played a major role in the commission of homicide, aggravated assaults and armed robbery.
The issue of incorporation
The central legal doctrine to be argued is that of incorporation, or whether a Second Amendment protection of the right to keep and bear arms can be applied to state and local governments through either the due process or privileges and immunities clauses of the Fourteenth Amendment.
In other words, does the Fourteenth Amendment, which guarantees the "immunities and privileges" of U.S. citizens, incorporate, or include, Second Amendment gun rights as one of those immunities and privileges?
The Fourteenth Amendment states: "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."
Federal appeals courts have divided on the matter, even recently. The U.S. Court of Appeals for the Seventh Circuit said the Second Amendment applies only to federal regulation of an individual's right to guns and not to states and local municipalities.
However, the U.S. Court of Appeals for the Ninth Circuit, long considered to be the most liberal court district, said the Second Amendment right to keep and bear arms has been regarded as the "true palladium of liberty" and must be applied against state and local government gun laws through incorporation.
Interestingly, the U.S. Court of Appeals for the Second Circuit faced the question in Maloney v. Cuomo, in which Sotomayor was one of a three-judge panel ruling that a New York state ban on a Japanese martial arts weapon did not violate the Second Amendment because the right to own a weapon is not a fundamental one.
That's the core standard in the incorporation debate - whether a certain right is a fundamental liberty that must be protected for all Americans. For it to be viewed as such, proponents must persuade the court that the right in question is "implicit in the concept of ordered liberty" or "deeply rooted in our nation's history and traditions," the latter being a major foundation of the Ninth Circuit's decision.
The notion of a particular right as fundamental to liberty has evolved through time. In the nation's early years, the Supreme Court, in a number of decisions, determined that the Bill of Rights had no standing at all beyond the federal government. For instance, it emphatically stated that states were not bound by the Bill of Rights in the 1833 decision Barron v. Baltimore.
Of course, the states turned out not to always do such a great job in protecting civil liberties - the institution of slavery comes to mind - and following the Civil War Congress decided some fundamental rights did exist after all, and so passed the Fourteenth Amendment.
Even after it was ratified, however, the Supreme Court ruled in United States v. Cruikshank in 1875 that the Second Amendment and even the First Amendment did not apply to state governments.
"The First Amendment to the Constitution, prohibiting Congress from abridging the right to assemble and petition, was not intended to limit the action of the State governments in respect to their own citizens, but to operate upon the National Government alone," the Court ruled, saying it left the authority of the states unimpaired.
Ditto for the Second Amendment.
"The right there specified is that of 'bearing arms for a lawful purpose,'" the Court stated. "This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress."
That same year, in the so-called Slaughter-House Cases, the justices determined that the Fourteenth Amendment's privileges or immunities clause did not extend the Bill of Rights to actions by states or local governments, effectively rendering the amendment meaningless.
In 1886, the Supreme Court reaffirmed its Cruikshank decision. In Presser, the petitioner contested as unconstitutional a state law that prohibited citizens from joining legally unauthorized militias or parading in public with firearms.
The High Court upheld the state law, saying it did not violate the federal right of the people to keep and bear arms.
"But a conclusive answer to the contention that (the Second) amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state," the justices wrote.
By 1897, a different strand of thought began to dominate the Supreme Court, and, case by case, the justices began to interpret the Fourteenth Amendment as selectively incorporating most of the Bill of Rights, making them applicable to the states.
Is it or isn't it?
Perhaps surprisingly, until now, none of those decisions touched upon the incorporation status of the Second Amendment. So the question is, is it incorporated or isn't it? Should the old precedents be upheld, or abandoned in light of the overwhelming case law of the last century?
In the eyes of the McDonald plaintiffs, the Second Amendment most certainly should be "incorporated against state and local governments," as their petition states, and, in asking the Supreme Court to take the case, Gura cited the Heller decision, which instructed courts to engage in Fourteenth Amendment analysis based on latter-day Supreme Court rulings.
" With respect to Cruikshank's continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases," the Heller decision noted.
That analysis is required now, Gura argued.
"Such an inquiry would establish unequivocally the necessity of incorporating the Second Amendment against the states," he wrote in the plaintiffs' petition to the High Court.
"A Second Amendment right valid only against the federal government is meaningless to
Americans disarmed by state officials - the very circumstance that encouraged the Fourteenth Amendment's ratification in the first instance. Indeed, incorporating the Second Amendment as against state actors may be the only way to preserve its impact upon federal actors. For example, the District of Columbia, not yet reconciled to this Court's opinion in District of Columbia v. Heller, argues 'that the Second Amendment should not apply to the District if it is not incorporated as against the States.' At least some federal actors are unimpressed by a constitutional right that state officials are free to ignore."
Not only that, but historically protecting the individual's right to keep and bear arms was one of the driving motivations behind passage of the Fourteenth Amendment, Gura asserted.
Indeed, during debate on the Fourteenth Amendment, supporter Sen. Samuel Pomeroy of Kansas described the amendment as necessary to protect one of the three indispensable safeguards of liberty - one of which was, in his words, a man's right to bear arms for the defense of himself and family and his homestead.
"To claim that of all rights, the Second Amendment must yield to local majoritarian impulses is especially wrong considering that the rampant violation of the right to keep and bear arms was understood to be among the chief evils vitiated by adoption of the Fourteenth Amendment," Gura wrote. "At the time, the Congress was beset by horrific reports of disarmament and its aftermath."
In their briefs to the court in support of McDonald, 33 states' attorneys general agreed.
"Texas, Georgia, and the other amici States have a profound interest in this case as guardians of their citizens' constitutional rights," the attorneys general wrote. "As our Founding Fathers recognized, and as this Court reaffirmed in District of Columbia v. Heller, the right to keep and bear arms secured by the Second Amendment is a critical liberty interest, essential to preserving individual security and the right to self-defense. Yet federal courts of appeals are divided over whether this right fully extends to the vast majority of citizens who live not in a federal enclave, but in one of the several States. Without this Court's review, millions of Americans may be deprived of their Second Amendment right to keep and bear arms as a result of actions by local governments, such as the ordinances challenged in this case."
Just as the High Court has held that the due process clause of the Fourteenth Amendment incorporates most of the Bill of Rights against the states, so it should consider the Second Amendment, they wrote.
"The right to keep and bear arms under the Second Amendment is not just a 'fundamental' liberty interest," the attorneys general wrote. "In the Anglo-American tradition, it is among the most fundamental of rights because it is essential to securing all our other liberties. The Founders well understood that, without the protections afforded by the Second Amendment, all of the other rights and privileges ordinarily enjoyed by Americans would be vulnerable to governmental acts of oppression."
The city of Chicago sees it differently.
Unlike truly fundamental rights such as free speech and religious exercise, the city asserted in its brief, the right to keep and bear arms carries an inherent risk of danger to the liberty and interests of others.
"Homicides are most often committed with guns, especially handguns, and nearly 60 percent of those homicides take place in large cities," the city's brief stated. "In 2008 alone, handguns were used in 402 homicides in Chicago. Thus, in urban environments, where handgun abuse is so rampant, the protection of a right to handguns simply because they are in common use undermines, rather than guarantees, ordered liberty. It is, instead, the very governmental power to protect residents that is critical to the concept of ordered liberty, since enforcing handgun control laws can make an enormous difference in curbing firearms violence."
The city relied heavily upon nineteenth century precedents to stake its claim.
"This Court held long ago in Cruikshank that the Second Amendment 'has no other effect than to restrict the powers of the national government,'" the brief argued. "Then, in Presser, the Court held that the amendment 'is a limitation only upon the power of congress and the national government,' and not upon that of the state. Again, in Miller, the Court made clear that the restrictions of the amendment 'have no reference whatever to proceedings in state courts.'"
What's at stake
If the Chicago ban is likely to be thrown out as an unconstitutional violation of the Second Amendment, what's all the fuss about? Did the justices take the case for any reason other than to formalize its Heller ruling nationwide and settle the Second Amendment issue of incorporation once and for all?
That's the $64 million question. If the Second Amendment is applied to state and local gun regulations, how far does its legal reach go? Could a ruling against the handgun ban be used to assault other gun control laws that stop short of banning gun ownership outright?
Some say a ruling for gun-rights advocates will have little, if any, effect. Dennis Henigan, a vice president of the Brady Center to Prevent Gun Violence, is one of those, writing in The Huffington Post last week that there may be less to the case than meets the eye.
"... the right declared in Heller is narrow in scope - the right to have handguns in the home for self-defense," Henigan wrote. "If the Supreme Court holds that the Second Amendment now applies to states and localities, only that narrow right will be extended."
What's more, he wrote, the language of the Heller opinion erected an important bulwark against the use of the Second Amendment to strike down existing state and local gun restrictions.
There's plenty of language to back up Henigan's claims. In last year's Heller decision, justice Antonin Scalia agreed that Second Amendment rights could be regulated.
"Like most rights, the Second Amendment right is not unlimited," Scalia wrote. "It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."
Not everyone thinks a decision for McDonald and the other plaintiffs might be so benign.
While Chicago and only one other local government enforce a ban on handgun ownership, other cities, such as New York, impose a number of requirements making it hard to register handguns, and many fear other gun-control laws could be challenged on the grounds they are unreasonable restrictions of liberty.
For his part, Gura believes a win could pave the way for Americans to carry guns in public across state lines. Others believe it could open the door for a challenge to Wisconsin's concealed carry prohibition.
While the Wisconsin Supreme Court has ruled that the law prohibiting the concealed carry of firearms is not unreasonable, challengers in federal court might argue that it is, based on laws allowing concealed carry in 48 other states.
Perhaps more important, such a decision would effectively overturn the 1873 Slaughter-House Cases that ripped a hole in the underbelly of the Fourteenth Amendment. It would effectively mean the entire Bill of Rights would be incorporated.
Such a decision could broaden the legal basis for a sweeping assertion of rights, such as the right to a jury in civil cases and a requirement that a grand jury bring indictments in felony cases, which is not the situation now in many states.
The prospects have some liberal groups salivating, too, and some, such as the Constitutional Accountability Center, which has filed a brief in support of McDonald, have openly joined hands with gun-rights activists in the case.
By further proscribing state and local governments' ability to restrict fundamental rights, and simultaneously expanding the menu of those rights, liberals believe the decision could provide the underpinning for challenges to laws restricting the right to abortion, to gay marriage, to sexual privacy, and to a host of other causes.
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Reader Comments
Posted: Sunday, October 11, 2009
Article comment by:
John Bobowski
I have been a business owner for the last 15 years. I started a new business last year in Chicago. The past year, I have been robbed 2 times and lastly in September I was robbed and beaten that resulted with a cracked rib, black eye, and severe back problems. I always have been a conservative law abiding citizen. Now with the past events, I have no choice but to break the law and carry a firearm. When I'm at work, It pains me deeply that I'm breaking the Law. However, it seems the laws don't apply to criminals. If I have to break the law and go to jail, would be better than dead. I hope that the law makers here my message!! It is a message from the majority that want to be safe and provide for our families. I truly feel that most would agree with y words.
Posted: Saturday, October 10, 2009
Article comment by:
Doug Huffman
Yes indeed, that is a fine article.
Apropos, I raised a motion to rescind our firearms ordinance for a number of reasons. I was refused for the Town Board wanting to keep the prohibition on rifle hunting when the DNR removes its various rifle prohibitions.
Posted: Friday, October 09, 2009
Article comment by:
Steve Gubin
Mr. Moore,
Kudos on an excellent article. Not merely for the topic it covers, but for your incisive explanation of prior precedents, judicial history, and the relationship between the 2nd and 14th Amendments. Thank you.
Best Regards,
Steve Gubin
Morton Grove, IL
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