A McDonald case win won’t settle all gun law questions
November 1, 2009
by Joseph P. Tartaro
Dave Workman’s report on the front page of this issue is good news for gunowners. The Supreme Court’s decision to review the Chicago gun ban law is a logical progression in the long uphill legal battle for Americans to be confirmed in their belief that they have a right to keep arms for self-defense.
Indeed, the McDonald case, which SCOTUS chose to review from among two that were challenging Chicago’s ban on handguns, was prepared and filed immediately after the Heller decision was announced last year. That filing had been prepared with the clear aim of getting the court to decide whether the individual right it found in the Second Amendment was a bar to gun bans only in federal enclaves like the District of Columbia or if it applied to all citizens in all states.
Firearms civil rights advocates were not the only ones who wanted the high court to decide on incorporation. Many legal scholars, including those supportive of many civil liberties issues, were also hoping the court would take the case and vote to broader the scope of the protections in the whole Bill of Rights.
As Workman reports, the highest court in the land has now focused on the question everyone was hoping it would decide. If the court applies its Heller ruling to the states, it will not resolve all the issues surrounding state and local gun restrictions. But it will set the stage on which future legal dramas about guns and self-defense will play out.
The Chicago Tribune, a traditionally anti-gun newspaper, made no bones about how it expects the court to rule in the McDonald case. The headline for its Sept. 30 story was “Prediction: Chicago’s handgun ban is going down.”
“The inherent right of self-defense has been central to the Second Amendment right,” The Tribune continued. “The (Chicago) handgun ban amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” would fail constitutional muster....
The Los Angeles Times, another long-time advocate of more restrictions on gun laws, also anticipated a court decision striking down the Chicago law.
“If you support measures to reduce gun violence, as this page does, it’s tempting to hope that the court will rule that states aren’t bound by the 2nd Amendment. The problem is that allowing states (and cities) to ignore this part of the Bill of Rights could undermine the requirement that they abide by others,” The LA Times continued.
“Landmark civil liberties decisions spanning eight decades were possible only because the justices concluded that key protections of the Bill of Rights applied to the states, because those rights were ‘incorporated’ by the 14th Amendment. Added to the Constitution after the Civil War, that amendment includes these words: ‘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 LA Times ended by supporting a reversal of the Chicago law. “In the Chicago case, the justices are considering whether the 2nd Amendment should be applied to the states by either the 14th Amendment’s due process clause (which applies to ‘persons’) or its privileges and immunities clause (which protects only citizens). The court should say yes, even as it reaffirms its assurance in its 2008 decision that government may still impose reasonable restrictions on the right to bear arms,” the newspaper noted.
“This is no time for the court to start picking and choosing when it comes to the Bill of Rights,” the newspaper editorialized.
The anti-gun New York Times also reported that “Most legal scholars expect the court to apply the Second Amendment to the states. But many of them are urging the court to take an unusual route to that result. Rather than continuing to rely on the 14th Amendment’s due process clause, the court should, these scholars say, look to the amendment’s “privileges or immunities” clause, which says that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
“There is some evidence that the amendment’s writers specifically wanted the clause to apply to allow freed slaves to have guns to defend themselves,” The Times continued. “Scholars on the right and left believe, moreover, that the clause could play a role in protecting rights not specifically mentioned in the Constitution.
The Washington Post, still another long-time media supporter of most gun control proposals, also prepared its readers for a high court ruling in favor of the Chicago plaintiffs.
“Most court observers say they think that the five justices who recognized the individual right will also find that the Second Amendment applies to state and local governments,” The Post noted, also confirming that such a decision “could spark challenges of state and local laws governing gun registration, how and when the weapons can be carried, and storage requirements.”
Some of those suits are likely to prevail, thus insuring a more liberal interpretation of the right to bear arms. One such law that would be likely to fall in the aftermath of a successful resolution of the Chicago case is New York state’s “premises” licensing requirement, as well as any similar strictures on keeping handguns in the home or place of business in other states.
New York’s penal code requires a license to acquire and keep any handgun at a fixed and specified location (premises) as distinct from two other classes of handgun license that allows a person to bear (carry) a handgun concealed in public either as a condition of employment (security guards) or for personal protection (24/7 carry) and other lawful purposes.
New York City, of course, has the strictest application (approved by the state legislature) regarding handgun licenses. It issues more premises handgun licenses that any other area of the state and allows those premise licenses to be used to bear a handgun unloaded and in a locked box to and from a range. It issues carry licenses only to the wealthy and well connected who can show “good cause” (reasons acceptable to a discretionary, and arbitrary, police licensing bureaucracy). New York City does not recognize licenses to carry or possess issued elsewhere in New York State and valid in almost all counties of the state.
Based on the 2008 Heller decision and the anticipated 2010 ruling in McDonald, it would appear that New York’s “premise” licensing provision to even acquire and keep a handgun in one’s home or business would be ruled unconstitutional in a future lawsuit. However, the state’s carry license statute might be allowed to stand by future courts.
When the court heard oral arguments in the Heller case in March 2008, people began lining up in front of its columned building two days early for a seat. The hearing chamber was crowded with lawyers, law professors and the media. One has to wonder what the turnout will be for the McDonald case.
Briefs by SAF/ISRA and Chicago’s lawyers are due Nov. 16. Chicago’s brief on Dec. 16.
The oral arguments in the case are expected to be argued in February, with a decision expected by the end of June, 2010.
We pray for a McDonald case victory, but that will not be the end of gun rights litigation.
Return to Archive Index