Chicago's Gun Ban Challenged

After the landmark Supreme Court case District Columbia v. Heller struck down Washington, D.C.’s handgun ban, gun activists are challenging a parallel law in Chicago.

The question presented is a difference appreciable mainly by lawyers:  Washington, being a federal enclave, called into question the federal government’s power to infringe on Second Amendment rights.  Chicago isn’t a federal city, so the issue is can a state or city government do what the federal government can’t?

The case of McDonald v. Chicago, with Supreme Court oral arguments set for March 2, involves the constitutionality of 28 year-old city regulations on firearms, which include a ban on most handguns.

The city of Chicago’s ordinance states that no one may possess “any firearm unless such person is the holder of a valid registration certificate for such firearm.” Also, no one may possess “any firearm which is unregisterable.” The court brief for the respondents of the City of Chicago and Oak Park Village states that unregisterable firearms include “most handguns.”

Otis McDonald, as well as several other individual plaintiffs, the Illinois State Rifle Association, and the Second Amendment Foundation, filed a lawsuit against Chicago on this matter. The individual petitioners argued that they legally owned handguns which they wished to possess in their own homes for self-defense, applied for permission from the city to possess those firearms, and were refused their requests.

The petitioners further argued that the Chicago firearm laws violated the Second Amendment as may be incorporated into the Fourteenth Amendment.

“The Fourteenth Amendment’s Privileges or Immunities Clause forbids the States from abridging civil rights, including those codified in the Bill of Rights,” the court briefing for Otis McDonald and the individual petitioners states.

This Privileges or Immunities Clause, the brief continues, applies Second Amendment rights to all citizens of the nation. “Long synonymous with ‘rights’ generally, the term (Privileges or Immunities) acquired additional heft with a landmark decision interpreting Article IV, Section 2’s guaranty that ‘[t]he citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States’ to encompass a broad range of rights believed naturally inherent in human beings and secured in any free government.”

“The modern incorporation test asks whether a right is ‘fundamental to the American scheme of justice,’ Duncan v. Louisiana, 391 U.S. 145, 149 (1968), or ‘necessary to an Anglo-American regime of ordered liberty,’ id. at 150 n.14. Duncan looks to the right’s historical acceptance in our nation, its recognition by the States (including any trend regarding state recognition), and the nature of the interest secured by the right. The right to bear arms clearly satisfies all aspects of the selective incorporation standard.”

Recently, the NRA was approved to participate in the oral argument of the Supreme Court case, joining the side of the petitioners, McDonald.

Otis McDonald and the plaintiffs have allegedly focused more on the Privileges and Immunities Clause in the case, while the NRA allegedly has pressed to focus more on the Due Process Clause.

The NRA acknowledged that the Court has never addressed the question of whether the Second Amendment should be incorporated against the states, using the Due Process Clause of the Fourteenth Amendment.

“This Court has never addressed the question whether the Second Amendment should be incorporated against State and local governments through the Due Process Clause of the Fourteenth Amendment,” states the court brief for the NRA. “Incorporation into the Due Process Clause would be fully consistent both with the common understanding of the Fourteenth Amendment when it was adopted, and with this Court’s selective incorporation precedent.”

“In desiring whether to incorporate a particular right enumerated in the Bill of Rights, this Court asks whether the right is a fundamental principle of liberty that is basic to a free society. The preamble of the Second Amendment and this Court’s decision in Heller both confirm the fundamental importance of the right to keep and bear arms to liberty and a free society.”

The Second Amendment provides: “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.”

The Constitution’s 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.”

The respondents, Chicago and the village of Oak Park, argue that the Second Amendment binds the federal government, but not state and local governments from infringing upon the people’s right to bear arms.

“The Court should reaffirm that the Second Amendment does not bind state and local governments,” the court brief for Chicago states. “Neither the Court’s selective incorporation doctrine under the Due Process Clause nor the Privileges or Immunities Clause provides a basis for imposing the Second Amendment on the States and establishing a national rule limiting arms regulation.”

Furthermore, they maintain that the clauses of the Fourteenth Amendment only allow for imposition of the Second Amendment upon states and localities under the concept of “ordered liberty.”

“Ordered liberty,” the respondents expounded, “is an exacting standard that appropriately protects federalism values at the root of our constitutional system and is particularly appropriate when addressing firearms regulation. Firearms are designed to injure or kill; conditions of their use and abuse vary widely around the country.

“Different communities may come to widely varying conclusions about the proper approach to regulation.”

The respondents and petitioners disagree in their court briefs on historical evidence of incorporation of the Second Amendment to the States.

“The Second Amendment precludes an ‘interest balancing’ approach and a ban on weapons in common use,” Chicago states. “But the States have generally adopted a ‘reasonable regulation’ approach under which even stringent restrictions or outright bans of particular firearms are ordinarily upheld.”

The respondents continue that historical evidence proves their point. “Indeed, the manner in which firearms were regulated during the period shows public acceptance of state regulation, including outright bans, so long as it was not done in a discriminatory manner.”

The NRA states to the contrary, “the history of the Fourteenth Amendment demonstrates that it was intended and publicly understood, inter alia, to protect the right of individuals to keep and bear arms.

“Statements from legislators, legal commentators, and the popular press, before, during, and after passage of the Fourteenth Amendment, demonstrate a consistent understanding that the Amendment would secure freedmen against efforts to strip them of their arms.”

Both sides also use the recent Supreme Court decision District of Columbia v. Heller to support their respective arguments.

District of Columbia v. Heller involved a group of private gun owners who filed a lawsuit against Washington, D.C., after the city passed legislation barring the registration of handguns, mandating licenses for pistols, and requiring all legal firearms to be kept unloaded and disassembled or trigger-locked.

The gun owners in Heller argued that such legislation violated their Second Amendment rights, while the petitioners believed the Second Amendment applied only to militias such as the National Guard; they further argued that the right to bear arms did not apply to D.C., being a federal enclave. They also believed that the legislation regulated, not prohibited, gun ownership, and thus did not violate the Second Amendment.

The Court decided in favor of Heller, that the Second Amendment protects the individual’s right to own a firearm and use it for traditionally lawful purposes, unconnected with service in a militia.

“This landmark decision ended years of debate over whether the right protected by the Second Amendment is individual or collective in nature,” the NRA states. The firearm laws of Washington D.C. in the Heller case show no significant difference from those of Chicago in the present case, the NRA argues further.

The respondents referenced the Heller decision as proving that the right to firearms for personal use was included in the Bill of Rights to protect the militia from disarmament by the federal government; not for its own sake.

“Although a right to firearms for personal use was recognized in a variety of sources of law that pre-existed the Constitution, District of Columbia v. Heller, 128 S. Ct. 2783 (2008), makes clear that it was not included in the Bill of Rights for its own sake or to protect it against the political process.

“Rather, it was codified to protect the militia by eliminating the threat that the federal government would take away the arms necessary for militia service.

 “Nothing in the congressional debate over the Amendment suggests any view that a private arms right unconnected to preservation of the militia was thought implicit in the concept of ordered liberty.”