Setting the stage for a dramatic battle over gun rights, the Supreme Court on Wednesday accepted an appeal challenging the ability of state and local governments to enforce strict limits on handguns and other weapons.
The high court returned from its summer recess, meeting in private to consider thousands of pending appeals that have piled up the past three months. The Second Amendment case from Chicago was the most anticipated of the petitions, and oral arguments will be held sometime early next year. Nine other cases were also accepted for review. At issue is whether the constitutional “right of the people to keep and bear arms” applies to local gun control ordinances, or only to federal restrictions. The basic question has remained unanswered for decades, and gives the conservative majority on the high court another chance to allow individuals expanded weapon ownership rights. The appeal was filed by a community activist in Chicago who sought a handgun for protection from gangs. The justices last year affirmed an individual right to possess handguns, tossing out restrictive laws in Washington. The larger issue is one that has polarized judges, politicians and the public for decades: Do the Second Amendment’s 27 words bestow gun ownership as an individual right or as a collective one, aimed at the civic responsibilities of state militias and therefore subject, perhaps, to strict government regulation And, is that regulation limited to federal laws or can it be applied to local communities The amendment states: “A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” “The Supreme Court has told us one of two important things, and that is that there is an individual right to bear arms, now we are poised to find out whether that applies to state and local regulation,” said Thomas Goldstein, a prominent Washington appellate attorney and co-founder of scotusblog.com. “That’s really where the rubber hits the road because there are all kinds of state rules about when you can have and carry a gun.” The community activist in the Chicago case, Otis McDonald lives in a high-crime neighborhood in Chicago. He says his work helping improve his community has subjected him to violent threats from drug dealers and other criminals. But his application for a handgun permit was denied in a city with perhaps the toughest private weapons restrictions in the nation. He was among several citizens who appealed the ordinance. A three-judge federal appeals court in Chicago — composed of Republican appointees — ruled in June for the city, concluding the Constitution and past high court precedent was vague on state versus individual fundamental powers. “Federalism is an older and more deeply rooted tradition than is the right to carry any particular kind of weapon,” wrote Judge Frank Easterbrook, who has a conservative track record on that bench. Figuring out the limits of an individual right is “for the justices rather than the court of appeals,” he said. The justices have not yet taken action on a separate weapons case from New York. In that case a Long Island man is appealing a 35-year-old state law banning a wide array of weapons, including chukka sticks — or nunchuks — composed of two sticks joined by chain or rope. They are staples of martial arts movies. James Maloney has sought to keep them for practice, training and possible self-defense. He was arrested in 2000 for possession of a chukka stick in his home. Maloney runs a one-man law firm and says he has long been an aficionado and historian of East Asian cultures. The newest Supreme Court justice, Sonia Sotomayor, was part of a three-judge panel that rejected his lawsuit in January. “It is settled law,” the unsigned opinion concluded, “that the Second Amendment applies only to limitations the federal government seeks to impose on this right.” The panel also noted the state’s interest in restricting ownership of these weapons, which the judges said had been used by muggers and street gangs, and can be considered “highly dangerous.” Sotomayor has not indicated whether she will recuse herself from consideration of the high court appeal. In a separate 2004 ruling (U.S. v. Sanchez Villar) that rejected a challenge to New York state’s pistol licensing law, Sotomayor and her fellow appeals court judges concluded in a footnote, “the right to possess a gun is clearly not a fundamental right.”
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The Supreme Court in June 2008 rejected a sweeping handgun ban in the nation’s capital, offering at least partial constitutional validation to citizens seeking the right to possess one of the most common types of firearms in their homes. On a 5-4 vote, the conservative majority of justices disagreed with arguments that the District of Columbia government had broad authority to enact what it called “reasonable” weapons restrictions in order to reduce violent crime. The city has since eased, but not eliminated, much of the previous restrictions. “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,” wrote Justice Antonin Scalia for the majority. “It is not the role of this court to pronounce the Second Amendment extinct.” Chicago and Washington are the only major U.S. cities that have enacted such sweeping firearm bans. Courts have generally upheld other cities’ restrictions on semi-automatic weapons and sawed-off shotguns. The conservative high court majority has in recent years upheld a California ban on assault rifles, similar to a federal ban that expired in 2004. But Scalia in the Washington case did not address the question now before the high court over state and local restrictions. And he cautioned the right to possess guns is not unlimited, referring to bans on gun ownership by the mentally ill and convicted felons, the assault rifle ban, and limitations on guns near schools. “The right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” he wrote. Fourty-four state constitutions protect their residents’ right to keep weapons, according to a brief filed by 32 state attorneys general in support of the individual weapons owners in the current appeals. Some constitutional experts have noted the Bill of Rights had traditionally been applied by courts only to the federal government, not to local entities. It was not until the past half-century that the justices have viewed free speech, assembly, and the press — among other rights — as individual in nature, and fundamental to liberty, superseding in many cases the power of states. There have been limits. The high court repeatedly has refused to extend to states the Fifth Amendment requirement that persons can be charged with serious crimes only by “indictment of a grand jury.” A CNN/Opinion Research Corp. poll of adult Americans in June 2008, the month the Washington ruling was issued, found 67 percent of those surveyed said they felt the Second Amendment gave individuals the right to own guns, and 30 percent said it only provided citizens the right to form a militia. The poll had a sampling error of plus or minus 3 percentage points. The case is McDonald v. Chicago (08-1521).
