BY LINDA BENTLEY | JUNE 30, 2010
SCOTUS rules in Chicago gun ban case
The right to keep and bear arms is ‘a privilege of American citizenship’
WASHINGTON – On June 28, U.S. Supreme Court Justice Samuel Alito delivered the opinion of the court, in McDonald v. Chicago, which Chief Justice John Roberts, Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas joined, holding that “the Second Amendment right is fully applicable to the states.”
Alito stated, “Two years ago, in District of Columbia v. Heller … we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home.”
While the city of Chicago and the village of Oak Park, a Chicago suburb, have laws similar to the District of Columbia, Chicago and Oak Park argued their laws are constitutional because the Second Amendment doesn’t apply to the states.
Otis McDonald, Adam Orlov, Colleen Lawson and David Lawson, the Chicago petitioners, are residents of Chicago who would like to keep handguns in their homes for self-defense but are prohibited from doing so by Chicago’s firearms laws.
A city ordinance provides that “no person shall … possess … any firearm unless such person is the holder of a valid registration certificate for such firearm.”
The municipal code then prohibits registration of most handguns, effectively banning handgun possession by almost all private citizens living in Chicago.
Oak Park makes it “unlawful for any person to possess … any firearm,” which includes “pistols, revolvers, guns and small arms … commonly known as handguns.”
Chicago’s handgun ban was enacted over 28 years ago to protect its residents “from the loss of property and injury or death from firearms.”
However, the petitioners argued the handgun ban has left them vulnerable to criminals.
According to Chicago Police Department statistics, the city’s handgun murder rate actually increased since the ban went into effect, with Chicago’s residents facing one of the highest murder rates in the country and rates of other violent crimes that exceed the average in comparable cities.
The petitioners also asserted that the 14th Amendment’s due process clause “incorporates” the Second Amendment right.
During a debate of the 14th Amendment, the 39th Congress referred to the right to keep and bear arms as “a fundamental right deserving of protection.”
Quoting Sen. Samuel Pomeroy, Alito wrote, “Every man … should have the right to bear arms for the defense of himself and family and his homestead. And if the cabin door of the freedman is broken open and the intruder enters for the purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete.”
Alito concluded it was clear the Framers and ratifiers of the 14th Amendment counted the right to keep and bear arms “among those fundamental rights necessary to our system of orderly liberty.”
He stated, “Despite all this evidence, the municipal respondents contend that Congress, in the years immediately following the Civil War, merely sought to outlaw ‘discriminatory measures taken against freedmen, which it addressed by adopting a non-discrimination principal’ and that even an outright ban on the possession of firearms was regarded as acceptable, “‘so long as it was not done in a discriminatory manner.’”
Calling their view “implausible,” Alito stated while Section 1 of the 14th Amendment contains an “anti-discrimination rule,” the municipal respondents “can hardly mean that § 1 does no more than prohibit discrimination. If that were so, then the First Amendment, as applied to states, would not prohibit nondiscriminatory abridgements of the rights to freedom of speech or freedom of religion; the Fourth Amendment … would not prohibit all unreasonable searches and seizures but only discriminatory searches and seizures – and so on. We assume that this is not the municipal respondents’ view, so what they must mean is that the Second Amendment should be singled out for special – and specially unfavorable – treatment. We reject that suggestion.”
Alito called their remaining arguments “at war with our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self defense within a home.”
Justice John Paul Stevens, in a lengthy dissenting opinion concluded, “By its terms, the Second Amendment does not apply to the states; read properly, it does not even apply to individuals outside of the militia context. The Second amendment was adopted to protect the states from federal encroachment. And the 14th Amendment has never been understood by the court to have ‘incorporated’ the entire Bill of Rights. There was nothing foreordained about today’s outcome.”
Scalia said he wrote separately only to respond to some aspects of Stevens’ dissent, because much of what Stevens wrote was “a broad condemnation of the theory of interpretation which underlies the court’s opinion, a theory that makes the traditions of our people paramount,” adding, “He proposes a different theory, which he claims is more ‘cautious’ and respectful of proper limits on the judicial role. It is that claim I wish to address.”
Scalia ridiculed Stevens’ statement about “sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society” being “an important tool for guiding judicial discretion,” and stated, “I cannot say whether that sensitivity will really guide judges because I have no idea what it is. Is it some sixth sense instilled in judges when they ascend the bench? Or does it mean judges are more constrained when they agonize about the cosmic conflict between liberty and its potentially harmful consequences? Attempting to give the concept more precision, Justice Stevens explains that ‘sensitivity is an aspect of a deeper principal: the need to approach our work with humility and caution.’ Both traits are undeniably admirable, though what relation they bear to sensitivity is a mystery.”
It makes no difference, said Scalia, because the first case Stevens cited in support of his argument dispelled “any illusion that he has a meaningful form of judicial modesty in mind.”
Thomas also wrote separately in concurrence with the court’s opinion that the 14th Amendment makes the right to keep and bear arms, as set forth in the Second Amendment, “fully applicable to the states.”
He said, “In my view, the record makes plain that the Framers of the Privileges or Immunities Clause and the ratifying-era public understood – just as the Framers of the Second Amendment did – that the right to keep and bear arms was essential to the preservation of liberty,” and called that right “a privilege of American citizenship.”