March 1, 2010

Sequel to ‘Heller’: ‘McDonald v. Chicago’ Goes Before The Supreme Court

The words from the 14th Amendment printed below are central to the McDonald v. City of Chicago case, which will be argued tomorrow before the U.S. Supreme Court. The court will rule on whether cities and states must honor the Second Amendment, which protects the right to keep and bear arms.

The key words from the 14th Amendment are "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 . . . . "

When cities such as Chicago and Oak Park, Ill., prohibit owning handguns, residents are denied their right to self protection, a violation of their Second Amendment right and their ability to protect their "life, liberty and property."

You can consider McDonald v. City of Chicago as the sequel to the 2008 landmark case–the District of Columbia v. Heller–in which the Supreme Court reaffirmed that the Second Amendment is an "individual" right to keep and bear arms as opposed to a "collective" right related to service in a militia. The court's decision, however, applied only to areas regulated by the federal government, such as Washington, D.C. As a result, instead of ending questions about the Second Amendment, the Heller decision actually served as the launching pad for legal attempts to further clarify how the right to keep and bear arms truly applies to all citizens.

After Heller, many lawsuits were filed to overturn laws that prevented individuals from owning handguns. In Chicago, several residents, in party with the Second Amendment Foundation and Illinois State Rifle Association, brought suit challenging the city's long-standing gun ban. The residents, among them a retired maintenance worker named Otis McDonald, wanted the freedom to own a handgun to protect themselves and their families. The National Rifle Assocation also filed a separate lawsuit seeking to overturn the city's statute.

Key elements in these cases date to the 18th and 19th century and are fascinating (and complicated) to consider. When the Bill of Rights was ratified in 1791, the intent was to limit the federal government from infringing on rights deemed to be "fundamental" by the founders–rights such as "freedom of speech" (First Amendment) and protection against "unreasonable searches and seizures" (Fourth Amendment). It seems inconceivable that such fundamental rights did not apply to the states, but that was the case. Following the Civil War when newly freed slaves had their individual rights abused by former Confederate states, Congress responded by passing the 14th Amendment. Through the 14th Amendment, the Supreme Court has applied other amendments to the states, although, not yet, the Second Amendment.

How broadly or narrowly the right to keep and bear arms will be applied to, or "incorporated as against," state regulation of the Second Amendment is what everyone will be watching when the court renders its decision. On Tuesday, one hour has been set for oral arguments. Attorney Alan Gura, who won the Heller case, will argue for the petitioners Otis McDonald, et al. Former U.S. Solicitor General Paul Clement will argue for the NRA, which is also a party to the case. Chicago's defense will take up the remainder of the time.

While the court's decision won't be known for some months, one thing we do know is how Americans feel about their Second Amendment rights. Nearly three out of four Americans considered the Second Amendment an individual right to own a firearm at the time of the Heller case, according to a USA TODAY/Gallup Poll.

It's a right that should be honored in every locality in the United States.

Background on McDonald v. City of Chicago can be found at the following . . .

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