SAF brief v. Chicago seeks incorporation
by Dave Workman
Senior Editor
The landmark Heller case in 2008 defined the Second Amendment as an individual civil right, and now the same attorney who successfully argued that case before the Supreme Court has filed a brief in another case that, if the high court agrees with his argument, will incorporate the right to keep and bear arms to the states.
The case is McDonald v. City of Chicago and the attorney is Alan Gura of Virginia. At stake is an issue that has long been disregarded by state and local governments, and now concerns them greatly: whether the fundamental right to own a gun affirmed by the Second Amendment places the same limit on their ability to regulate firearms as it does on the federal government.
The case was filed on June 28, 2008 by the Second Amendment Foundation (SAF) and Illinois State Rifle Association (ISRA) and four individual Chicago residents, and should not be confused—although many in the press already have done that—with a similar case filed the following day by the National Rifle Association and other individuals against Chicago and the Village of Oak Park. The NRA’s case was not accepted for review by the Supreme Court, and is essentially “on hold.”
According to SAF founder and Executive Vice President Alan M. Gottlieb, the McDonald case not only challenges the Chicago handgun ban, but also opens the door for incorporation of the Second Amendment to the states through the Fourteenth Amendment.
That is an ominous prospect for the gun control lobby and local anti-gun politicians including Chicago Mayor Richard Daley. Although they would argue that incorporation would not interfere with what they consider “reasonable regulation” of firearms including prohibitions on possession by convicted felons and persons adjudicated mentally insane, they are still concerned that an affirmative ruling on incorporation could open the floodgates to legal challenges of other state and local gun control laws.
Gun rights proponents, on the other hand, contend that nobody has defined what “reasonable regulation” actually means, and that many local gun regulations aren’t reasonable at all.
“Our filing,” Gura said, “will help establish that the right to keep and bear arms is a fundamental right of American citizenship no city official can violate.”
In his 91-page brief, Gura offers an extensive history of the Fourteenth Amendment’s “Privileges or Immunities” clause, and contends that it encompasses the Second Amendment.
“If the Fourteenth Amendment is to be interpreted by reference to the declared intentions of its framers,” Gura wrote in his brief, “the right to keep and bear arms clearly applies…”
He later added, arguing for incorporation, that “there can be no valid reliance interests in depriving individuals of their constitutional rights.”
The Chicago case challenges the city’s authority to deprive Chicago residents of the right to keep and bear arms, specifically handguns, which the Supreme Court’s Heller ruling recognized to be the type of weapon commonly used for home protection.
In Chicago, residents must re-register their firearms every year, but the current municipal code generally prohibits the registration of handguns.
“This handgun ban,” Gura says in the brief, “functions identically to that struck down as infringing the Second Amendment rights of District of Columbia residents.”
Under the current ordinance, firearms registrants must immediately notify police of any change in their registration information including the loss or other disposition of a gun or registration certificate. The city requires annual re-registration of guns, a process that starts at least 60 days prior to the expiration of a current registration. Re-registration requires an additional fee, and re-submission of all original registration materials.
If this annual re-registration process is not completed in time, the particular firearm(s) for which the registration expires automatically become illegal to possess in Chicago, and may not be re-registered. In essence, they are contraband.
“We brought this case because the Chicago ban has denied law-abiding citizens the exercise of a basic civil right for more than 20 years,” said Gottlieb. “This kind of onerous regulation simply cannot go unchallenged.”
“A victory in this case not only restores a fundamental right to Chicago residents,” added ISRA Executive Director Richard Pearson, “it will prevent other such outright bans all over the country.”
The case is focused on the issue of whether guns can be kept in the home for self-defense which was the core of the Heller decision. It has nothing to do with bearing arms outside the home which is an entirely separate issue. Illinois is one of the only two states which have no provision for legal concealed carry outside a residence or business. The other is Wisconsin.
However, the implications of a Supreme Court ruling based on the “Privileges or Immunities” clause are so great that many organizations and political figures, on the left as well as the right of the political spectrum, are expected to file amicus briefs in the case. Such a ruling could affect the entire Bill of Rights, for example expanding Fourth Amendment protections.
Attorneys for Chicago have requested a delay in the filing of their brief in the case, which is expected to have oral arguments presented in February, with a final high court ruling sometime before the court adjourns for the year at the end of June.
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