Chicago’s brief exposes defense arguments
by Dave Workman
Senior Editor
While acknowledging that “no other substantive Bill of Rights protection has been regulated nearly as intrusively” as the Second Amendment, the City of Chicago maintains in its brief to the Supreme Court in the challenge to its handgun ban that such bans should be allowed in order to maintain what it calls “a system of ordered liberty.”
It is a theme found repeatedly in the 106-page brief filed by the city, laying out its case in McDonald v. City of Chicago, brought against the city in June 2008 by the Second Amendment Foundation, Illinois State Rifle Association and four individual plaintiffs. Surprisingly, at some points in the brief, it appears the city is mistaking the plaintiffs in this case with the National Rifle Association, which filed a separate lawsuit against the city on the day after SAF and ISRA filed their action. NRA also sued the adjacent Village of Oak Park, while SAF and ISRA did not.
However, when the Supreme Court decided to accept a challenge to the Chicago ban, it agreed only to hear the SAF/ISRA case, essentially leaving the NRA case on hold. On Jan. 4, the NRA made the unusual request of the Supreme Court to be given time to join in the oral argument, scheduled for Mar. 2. SAF attorney Alan Gura opposed the request.
According to SCOTUSBlog, an on-line commentary about Supreme Court activities, the NRA motion was filed by Paul D. Clement, the former Solicitor General in the Bush Administration. Clement came under fire two years ago for his tepid brief in the Heller case in which he put forth the argument that the right to have a handgun in one’s home “it should be subject to regulation by government that would not have to meet the strictest constitutional test,” according to remarks on the Heller case on SCOTUSWiki, another on-line reference covering the high court. Both the SCOTUSBlog and SCOTUSWiki articles were written by Lyle Denniston.
NRA requested time to argue incorporation under the Due Process Clause rather than under Privileges and Immunities, which is the thrust of the SAF/ISRA argument.
In his petition, Clement argued that the NRA has “a particularly strong claim to argument time.” He claimed the NRA is “a party to this case and active participant throughout the proceedings.” Clement also noted that the court has granted divided argument time in previous cases.
“This is an extraordinarily important case,” Clement wrote. “The outcome will determine whether the Second Amendment is somehow bizarrely limited to the federal government and federal enclaves or whether it is the fundamental guarantee of liberty that the Framers of the Fourteenth Amendment envisioned.”
Chicago maintains in its brief that regulations limiting the right to keep and bear arms at the local level have been consistently upheld by the courts. The city, therefore, contends that the Second Amendment should not be incorporated to limit state and local government gun control measures.
The Chicago brief argues that:
“Bill of Rights provisions are incorporated into the Due Process Clause only if they are implicit in the concept of ordered liberty.”
“Chicago and Oak Park may reasonably conclude that in their communities, handgun bans or other stringent regulations are the most effective means to reduce fear, violence, injury, and death, thereby enhancing, not detracting from, a system of ordered liberty.”
“Our submission is simply that data exist to support a conclusion that under some conditions stringent firearms regulations can limit violence; reduce injury and death; and lead to the preservation of, not the intrusion upon, a system of ordered liberty.”
“Because handguns are so well adapted for the commission of crimes and the infliction of injury and death, stringent handgun regulations, including prohibitions, can be reasonably thought to create the conditions necessary to foster ordered liberty, rather than detracting from it.”
“But incorporating the Second Amendment would place at risk, in addition to handgun bans, many other firearms regulations that may equally be viewed as necessary to reduce fear, violence, and injury, and therefore to foster, not threaten, a system of ordered liberty.”
“Finally, the treatment of firearms rights in other countries—especially countries that share our Anglo-American heritage—supports the conclusion that the Second Amendment right is not implicit in the concept of ordered liberty.”
While Chicago’s strategy repeatedly alludes to the preservation of this “ordered liberty,” the city’s attorneys also argue that Second Amendment incorporation is not supported by history. They contend that the right to keep and bear arms “was not included in the Bill of Rights for its own sake or to protect it against the political process; rather, it was codified to protect the militia by eliminating the threat that the federal government would take away the arms necessary for militia service.”
“The scope of the Second Amendment right— weapons in common use—also reflects its purpose of protecting the militia,” Chicago argues, “rather than an individual right related to self-defense, since the Second Amendment protects weapons regardless of whether they are useful for self-defense.”
And again, the city maintains, “Nothing in the congressional debate over the Amendment suggests any view that a private arms right unconnected to preservation of the militia was thought implicit in the concept of ordered liberty.”
Certain to aggravate gun rights activists, the city contends that “The scope of the Second Amendment right also reflects the purpose to protect the militia rather than to further a fundamental aspect of personal liberty.”
It would appear to some observers that Chicago and Oak Park seem to be re-arguing the issues in the Heller case in an attempt to salvage their handgun bans in the McDonald case.
To keep abreast of the McDonald case before the Supreme Court, follow the postings on chicagoguncase.com.
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