2nd Amendment court battle – Chicago case to be round two

Did the Heller case clear up the meaning of the Constitution’s 2nd Amendment? D.C v. Heller dealt with an individuals right to possess a firearm for private use, but the case did not address the city, local and state laws restricting ownership or purchase. Next up … McDonald v. Chicago.

If my understanding is correct, the case will deal with incorporation of the 2nd Amendment. Incorporation is legal-speak for applying an amendment to the states – in other words state (and local) laws could not supersede the Constitution. (I’m hoping the Sound Off Sister will review and comment on this post…)

Chicago has very strict gun laws. As a matter of fact, residents have been denied their right to purchase a handgun since 1982. So the federal government says you have the right to bear arms, but the city of Chicago – since in their mind the 2nd Amendment has not been incorporated – assume they have the power to restrict the purchase, ownership and carry rights of their residents and guests visiting the city.

Another way to look at it is the state does not think the United States Constitution applies – in some cases – unless it is politically expedient for them.

Side note: I find it funny that many liberals can find language in the Constitution not only permitting, but encouraging federal cash for local schools, firetrucks, city parks, brick sidewalks and street signs – but then claim the 2nd Amendment does not apply in their city.

Many amendments have been incorporated against the states, but the Supreme Court has not answered the incorporation question for the 2nd Amendment. Currently, the Circuit Court of Appeals are split on the subject with the Ninth incorporating (surprise there) and the Second and Seventh not incorporating. The SCOTUS decision – with arguments scheduled for next year – will fix the split decisions.

If the 2nd is held to be not incorporated, you’ll see quite a bit of “feel good” legislation that will limit your rights to protect yourself and your family. Held incorporated, many states and cities – including Washington D.C. – will need to revisit their current restrictions on purchase and ownership.

For many states, the incorporation of the 2nd Amendment is moot since their individual constitutions already cover the topic. As an example, Connecticut’s Constitution (Article 1, Sec. 15) reads

Every citizen has a right to bear arms in defense of himself and the state.

That pretty much clarifies the issue of incorporation for Connecticut unless someone repeals Article 1, Sec. 15. The Illinois Constitution seems a bit more vague in its first clause. Article 1, Sec. 22 reads …

Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.

I read that section as follows … Our state laws (police powers) can be written to restrict your ownership of firearms… but the right of the individual citizen to keep and bear arms shall not be infringed.

Good one.

Hence, Illinois is a good battleground to discuss and rule on incorporation of the 2nd Amendment to the states.

Even though Heller overturned D.C. law banning the possession of a firearm for personal use, the city fought long and hard to ensure it was so damn expensive to pass the rules and jump through the hoops, many residents can not afford the costs. In early September, Christian Davenport – a Washington Post staff writer – wrote about his experiences and the fact it cost more than $800 to go through the process including the inexpensive used revolver he purchased for $275.

This tactic – letting residents know they have the right, but they must pay outrageous fees for that right – is completely dishonest and if I was on the SCOTUS, I’d be slapping heads.

McDonald v. Chicago (08-1521) is scheduled for arguments in early 2010.

More over at SCOTUS Blog, Josh Blackman’s Blog, Volokh Conspriacy and Hot Air.

6 replies
  1. SoundOffSister
    SoundOffSister says:

    You are absolutely correct, Steve.

    The question presented in the Chicago case that the Supreme Court will hear is whether the right to bear arms is a right "fundamental" to the founding of our country.  If it is a "fundamental" right than it is "incorporated" into the laws of every state. 

    As you point out, the Ninth Circuit Court of Appeals earlier this year in the Nordyke decision, held that the right to bear arms was a fundamental right, and thus was incorporated into the laws of California.

    Pages 19 through 27 of Nordyke provide an illuminating discussion of the origins of the 2nd Amendment and are well worth anyone's time to read.

    Both Nordyke and Heller recognize that the federal government and the states can ban guns in certain places, but they cannot put unreasonable restrictions on the right to bear arms so as to effectively ban arms entirely.

    Personally, I would love to be present in the Supreme Court to hear the arguments in the Chicago case.  I suspect it will be a "lively" discussion.

  2. Steve McGough
    Steve McGough says:

    A law professor letting me know I'm "absolutely right" concerning a legal matter is quite the self-esteem builder. … yet, very scary at the same time  😉  Thanks!

    • Wyndeward
      Wyndeward says:

      Could someone please explain it to Mr. Fineman over at Newsweek?  He doesn't seem to understand the issue of incorporation or even that it is the Supreme Court's role to make rulings when the issue has been decided differently in different circuits.

      Even arch-liberal Tribe "gets it."

  3. Dimsdale
    Dimsdale says:

    There is a rather illuminating discussion of this topic at


    Worth the quick read, particularly in reference to heavy duty liberal Harvard law professor Laurence Tribe's realization that "The people's 'right' to be armed cannot be trumped by the [Second] Amendment's preamble."


    Your observation that Democrats use/twist/ignore/redefine/ the law to suit their own political expedience is exemplified by the recent decision by the MA legislature to fill Kennedy's seat in defiance of a law Kennedy himself worked to put into place (to foil then Gov. Mitt Romney's possible opportunity to fill Kerry's seat if he won the election).

  4. PatRiot
    PatRiot says:

    –  Let's cut to the chase.  Rights that we were born with (some say God given) are not subject to legislation, unless to ensure their protection, hence, the Constitution. 

    –   These rights belong to each individual and have no boundaries.

    –  The Constitution establishes other rights and gives us the tools to keep Government in line and our Republic whole.

    -This is what America is about and who we are.  It is the heart of every issue we face.

    –  Bring the focus back to this on every issue and we can prevail. "I was born with that right…."  The Constitution guarantees my right…"  "The Constitution doesn't allow…."          " That is against the Constitution…"  " Common sense says…." " Your oath…"

    –  The common sense of this and the growing will to fight for them is spreading rapidly.

  5. Lazybum
    Lazybum says:

    Wait- As I interpret the Chicago Way concerning gun laws, it is a constitutional right to keep and bear arms, but you can't buy them. Since few people are giving them away, one could infer that to enjoy the right you would have to steal them. Are they saying that a non-felon with a stolen or "found" firearm is ok but an honest citizen who purchases on is not ok?

    I am not getting it.

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