The U.S. Supreme Court will hear arguments Tuesday, March 2, on whether the Chicago restrictive ban on handguns will be upheld or struck down on Second Amendment grounds in McDonald v. City of Chicago. (see McDonald Petition for Certiorari, National Rifle Association Petition for Certiorari, City of Chicago Brief in Opposition to Petition for Certiorari; San Jose Mercury News article, “U.S. Supreme Court to Take on Battle over Gun Rights”; Seattle Times article, “Supreme Court to Scrutinize State, Local Gun Laws”) If this issue interests you, for a more detailed discussion please check out a local Chicago area website here.
Chicago will be arguing that the Second Amendment’s language, “…for a well regulated militia…” restricts the Right to Bear Arms to this limited purpose, while opponents will argue that through either incorporation or the Privileges and Immunities Clause of the Fourteenth Amendment apply the Second Amendment universally to the states.
This has been a hot button issue for as long as I can remember. In law school, I remember students standing up and angrily pointing at each other in our Constitutional Law course, which was highly atypical for such educated, civilized students. I think technology has intervened in this issue to muddy the waters of what our Forefathers may have intended. On one hand, it was extremely important to them that the government was not the only source of armament. They were even concerned about a permanent standing army. For better or for worse, our military has irreversibly grown to be a full-time, permanent standing defensive (and some might argue offensive) force. The only comparable force that exists today to the militia of colonial days is the respective national guards of each state. But as we have seen in recent years, these Guards can be deployed at the whim and discretion of the federal government (e.g. Irag, Afghanistan, et al.). Are these state ‘militias’ truly the check on government that our Forefathers intended?
Second, the government can only regulate the possession of firearms among the law abiding citizenry. Laws passed making the possession of firearms illegal does not change the behavior of deviants within our society. Passing more restrictive gun laws disarms the average, law abiding citizen, while gang members and perpetrators of violent crime continue, unaffected.
On the other side of the issue, certain weapons are inherently dangerous to human beings. They have little or no recreational utility, and are designed for a single purpose: the destruction of human life. If the possession and use of weapons are restricted, it will economically reduce the production of such weapons as a whole, and perhaps theoretically reduce the number of violent crimes as a result.
Either way, practical concerns should be left to the legislature. The real question is, can states regulate the possession of certain firearms, and if so, to what degree? The Constitution is ambiguous on this point. In a 2008 decision written by Justice Antonin Scalia, District of Columbia v. Heller, there is some fundamental right for individuals to possess firearms. (see Los Angeles Times article, “Justices Affirm Gun Rights”.) If this new court including Justice Sotomayor follows this 2008 decision, it has little choice but to forbid such regulations. If the Court decides to distinguish the Chicago law from previous decisions, it can find that the 2008 decision does not apply.
On the other hand, it is pretty clear that the Chicago restriction is more restrictive than the restriction in Heller. In that case, the District of Columbia law banned handgun possession by making it a crime to carry an unregistered firearm and also prohibited the registration of handguns. It provided separately that no person may carry an unlicensed handgun, but authorized the police chief to issue 1-year licenses, and required residents to keep lawfully owned firearms unloaded and dissembled or bound by a trigger lock or similar device. In this case, Chicago sought to ban most types of handguns altogether in order to protect the City from handgun violence. One other notable difference is that in Heller, the restriction was not promulgated by state authority. This decision will address whether the Second Amendment prohibits the states from regulating firearms.
One thing is for sure: the stakes are high. Forty-nine (49) amicus curiae briefs have been filed supporting and in opposition to the ban. Stay tuned to NWI Lawyer for updates.