Federal Appeals Court Upholds Chicago Ban On Handguns
Which sets the stage for what could be another landmark Supreme Court ruling on gun rights.
June 2 (Bloomberg) — A Chicago ordinance banning handguns and automatic weapons within city limits was upheld by a U.S. Court of Appeals panel, which rejected a challenge by the National Rifle Association.
The unanimous three-judge panel ruled today that a U.S. Supreme Court decision last year, which recognized an individual right to bear arms under the U.S. Constitution’s Second Amendment, didn’t apply to states and municipalities.
“The Supreme Court has rebuffed requests to apply the second amendment to the states,” U.S. Circuit Judge Frank Easterbrook wrote, upholding lower court decisions last year to throw out suits against Chicago and its suburb of Oak Park, Illinois.
The Fairfax, Virginia-based NRA sued the municipalities in June 2008, one day after the U.S. Supreme Court’s decision in District of Columbia v. Heller struck down a hand-gun ban in the U.S. capital district encompassing Washington.
“We clearly disagree with the court’s conclusion,” NRA attorney William N. Howard, a partner in Chicago’s Freeborn & Peters LLP, said in a telephone interview. “The next step will be an appeal to the Supreme Court.”
In the District of Columbia vs. Heller decision the Supreme Court upheld the notion that the 2nd amendment right to “keep and bear arms” is an individual right. Meaning that citizens have a constitutional right to keep and bear arms for private use, including for self defense. Writing the opinion for the majority in the ruling, Justice Scalia said “we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.” It seems to me that if the District of Columbia’s ban on handguns violates the Second Amendment, then so does Chicago’s.
Now, some would argue that there’s a difference. The District of Columbia isn’t a state. Illinois is. That is an important distinction, but in this case I believe it’s meaningless per the incorporation clause of the 14th amendment which states: “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.” This means that no state can remove something granted to the citizenry by the Constitution. Though it has never been specifically addressed in Constitutional law (to my knowledge anyway), gun rights are no different than religious rights or free speech rights in that they fall under the “privileges and immunities” protected by the 14th amendment.
In short, gun ownership is a right. The State of Illinois may remove that right from any given citizen through due process (a civil or criminal proceeding), but not through blanket bans.
