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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.