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In welcome news this morning, the Supreme Court agreed to hear arguments in the potentially far-reaching Second Amendment case of “McDonald vs. City of Chicago.” At issue is whether last year’s historic Heller vs. District of Columbia decision affirming the individual right to bear arms also applies to state law, a doctrine known as “incorporation.” The Court said it will hear the case this coming January or February.

But the case also presents opportunities to expand all civil liberties, not just Second Amendment rights. As Doug Kendall of the progressive think tank, the Constitutional Accountability Center, noted in their recent brief supporting McDonald:

“McDonald v. City of Chicago is about more than guns: it is about whether the Court will restore the precise constitutional text that requires states to honor the fundamental rights of all Americans.”

Background:

In the 2008 Heller decision, the Supreme Court unequivocally affirmed the civil right of citizens to keep loaded handguns “at the ready” in their homes. However, the ruling specifically said that their decision applied only to federal, not state law.

Writing for the majority in favor of Second Amendment rights, Justice Scalia said:

“It held that the Second Amendment protects an individual right to possess firearms and that the city’s [Washington, D.C.] total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.”

The McDonald case has the potential to solidify the Heller ruling and, hopefully, strike down once and for all restrictive state or city ordinances that amount to total handgun bans, as well as laws that insist that handguns must be stored in a “nonfunctional” state, e.g. in a safe or with trigger locks in place. (Note: If you have kids around the house, use common sense about the relative risks of home invasion vs. curious young hands.)

All five of the justices who supported last year’s Heller decision are still serving, with the addition of Justice Sonya Sotomayor (recently appointed by President Obama) whom we expect to join with the majority in applying the Second Amendment rights and protections to the states.

Arbitrary and Capricious

Chicago’s handgun ban was instituted in early 80s during the anti-gun sentiment following the attempted assassination of Ronald Reagan. Local feelings about the law are mixed, but there is no evidence that the law’s intent of lowering violent crime has worked in any way. Chicago residents face up to a year in jail as well as fines for mere possession of a handgun.

However, like most gun prohibitions, the law has not been uniformly or equitably enforced, as was shown in 1994 when Illinois state senator Rickey Hendon, representing west Chicago, reported a handgun stolen from a burglary but was not prosecuted for owning it. This is clear evidence that enforcement of the ban is both “arbitrary and capricious” (see below). We suspect lawyers arguing the case will find more instances of inequity without having to look very hard.

Earlier this year, gun rights activists became especially concerned after another far-reaching gun control bill, The Blair Holt Bill, was introduced to a chilly reception in Congress by Chicago Congressman, Bobby Rush. Rush’s bill included conditions for gun ownership, such as a requirement that guns be disassembled while not in use, that would be unconstitutional if the Heller decision is applied to the states.

Modest Change

If the Supreme Court determines that citizens of all states have the same inalienable rights to self-defense and firearms ownership, it will not result in a complete overhaul of all state restrictions. In the Heller ruling, the Supreme Court listed a number of permissible restrictions which it seemed to leave up to local jurisdictions to decide for themselves.

Quoting from the Heller decision, these restrictions include the following:

• “prohibitions on the possession of firearms by felons and the mentally ill”
• “laws imposing conditions and qualifications on the commercial sale of arms.”
• “concealed weapons prohibitions”
• “the historical tradition of prohibiting the carrying of dangerous and unusual weapons”

The Heller decision also upholds governments’ right to require registration or licensing:

“Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.”

 While the court does not require any of these listed restrictions, in the tradition of federalism it leaves the door open to local sentiment and control within specified bounds as long as they are well short of de jure or de facto bans. This is in line with the emerging policy of the Obama administration, which favors federalism and local control in matters of firearms policy. AHSA believes this approach is in the best tradition of our federal system; but we would also argue that state-level pre-emption laws that apply a single legal standard throughout a state are better than a patchwork of confusing and draconian local laws that make criminals out of law-abiding citizens who innocently cross unmarked or unposted boundaries.

Our bet is that the Supreme Court will rule on the side of gun owners and of the original intent of the founders of our republic by incorporating the Second Amendment to apply to all jurisdictions. If you have an FFL in the Chicago area, you can expect some new customers come this spring.

Washington, D.C. - Ray Schoenke, the President of the American Hunters and Shooters Association (AHSA), expressed support for Judge Sonia Sotomayor as Supreme Court Nominee. Schoenke made the endorsement in a letter to Senate Judiciary Committee Chair Patrick Leahy (D-VT).

Schoenke, a life long hunter, and gun-owner stated his firm belief that gun owners have nothing to fear from Sotomayor:

“Based on the available case history, it appears that Sotomayor honors precedent. Now that D.C. v Heller is precedent, gun-owners should feel secure that their rights are safe.

After sending the letter, Schoenke stated, “As with most issues involving the Second Amendment, concerns about Sotomayor are being stoked by groups who benefit financially from the politics of fear. At AHSA, we believe strongly that the Second Amendment is an individual right, as determined in the landmark case, D.C. v. Heller. We know are gun rights are secure and look forward to the expansion of those rights to the states.

Schoenke noted, “In a recent Second Amendment case, Judge Sotomayor simply followed precedent in cases involving Second Amendment rights as it applies to the states. Other conservative judges in the Seventh Circuit took a similar position. What we should be focusing on is making sure that, Heller, through the 14th Amendment’s process of incorporation guarantees Second Amendment freedoms in all states.”

Contact: Colin at colin@huntersandshooters.com

Last week, I spent some time in Southern Ohio on behalf of the Obama campaign. My mission was simple: To assure my fellow gun owners about Obama's gun record and to talk up the need to
focus on conservation:

"As a gun rights organization, we believe gun rights should be protected, and it's a right we feel strongly about," Schoenke said, adding he doesn't believe an administration under Barack Obama would decrease gun ownership rights.

"The Supreme Court has ruled the government can't take your guns away," he said. "Neither party is going to take your guns away."

One thing struck has me about the NRA's rhetoric this year: The NRA is ignoring that recent monumental Supreme Court decision in Heller v. District of Columbia, which finally held that the right to keep and bear arms is, in fact, an individual right. They are acting like it never happened. It's another lie -- a lie of omission. Here at American Hunters and Shooters Association (AHSA), we filed an amicus brief in the Heller case. It was historic -- and the result we wanted.

It was widely asserted that the leadership of the NRA never wanted that case to move forward. Now, after gun owners won a stunning victory, the NRA hierarchy is essentially ignoring the result.

Reading through the NRA's anti-Obama mailings and watching the group's ads, one would think nothing has changed since the previous election. Every four years, the leaders of the NRA haul out the same old attacks against the Democratic presidential candidate. They don't let facts get in the way. Instead, Wayne LaPierre and his partisan cronies use their members' resources to launch the same old false partisan attacks.

This year, the ads and mailings against Obama from the NRA just don't hold water according to independent sources. Factcheck.org reported "A National Rifle Association advertising campaign distorts Obama's position on gun control beyond recognition." The Washington Post wrote "The NRA misfires on this one" and awarded the group "three Pinnocchios."

This year should be different. Gun owners got the critical ruling we've long sought from the U.S. Supreme Court by winning the D.C. gun ban case. Our gun rights are protected from Congress and the White House. But, the NRA is acting like that decision never happened and doesn't really count- but it did and it does-period! That's why the usual attacks won't work this year. Gun owners are more aware of what's really going on than the NRA leaders think. We know our gun rights now are safe, and now we want to secure our economy and protect our environment getting this country headed back in the right direction.

The leadership of the NRA is living in the past. They're doing a double disservice to gun owners who are fighting for the environment and fighting for their jobs. LaPierre needs a new act because this one has gotten really old. It might make his right wing friends happy, but it's failing the nation's hundred million gun owners miserably.