In a landmark, but not surprising, decision, the U.S. Supreme Court Monday struck down Chicago's ban on private ownership of handguns, saying the Second Amendment applies to states and municipalities as well as the federal government.
The high court extended its 2008 ruling in Heller vs. United States, which allowed residents in Washington, a federal enclave, to have guns for self-defense in their homes.
During oral argument before the high court on March 2, it was clear the Second Amendment right to bear arms would be incorporated to the states and municipalities to some extent. Many people in Chicago -- a city fraught with gun violence -- braced itself for that eventuality.
Chicago Mayor Richard Daley said the ruling was not unexpected and the city would revise its ordinance to comply with the decision.
In an interview with the Chicago Tribune, Daley said his main concern is protecting police, firefighters and paramedics responding to emergency calls.
"I'm disappointed by the decision, but it's not surprising," Daley told a news conference. "We're still reviewing the entire decision, but it means that Chicago's current handgun ban is unenforceable, so we're working to rewrite our ordinance in a reasonable and responsible way to protect Second Amendment rights and protect Chicagoans from gun violence."
Chicago lawmakers, seeing where the court was headed and cognizant Chicago's gun ordinances are similar to those stricken two years ago, have been getting ready for Monday's decision. The Chicago City Council was expected to address the issue Wednesday.
Among the proposals under consideration are only allowing face-to-face gun sales, keeping records of gun buyers' identification and the amount of ammunition purchased, requiring gun re-registration every three years and prohibiting ammunition sales to those convicted of gang crimes.
McDonald is a landmark case, even though parts of the Bill of Rights have been brought into the states piecemeal through the Fourteenth Amendment as gun rights have historically been perceived to be different from the other rights because of the inherent danger. Earlier attempts at incorporation failed.
The 204-page decision penned by Justice Samuel A. Alito and joined by Chief Justice John G. Roberts and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas, included four pages of appendix material provided by Justice Stephen Breyer, who was joined in a dissent by Justices Ruth Bader Ginsburg and Sonia Sotomayor.
Hearkening back to its decision in Heller, the majority said incorporation of the Second Amendment is consistent with the concept of ordered liberty:
"Self-defense is a basic right, recognized by many legal systems from ancient times to the present, and the Heller court held that individual self-defense is 'the central component' of the Second Amendment right. The need for defense of self, family and property is most acute in the home. The court found that this right applies to handguns because they are 'the most preferred firearm in the nation to "keep" and use for protection of one's home and family.'"
It was also clear from the oral arguments, that incorporation of the Second Amendment would be via the Fourteenth Amendment's due process clause rather than the amendment's privileges and immunities clause. The Fourteenth Amendment provides: "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; nor deny to any person within its jurisdiction the equal protection of the laws."
The justices were reluctant to invoke the privileges and immunities clause -- which was the petitioners' first line of attack on the gun bans -- as it would have overruled the Slaughter-House cases, a 137-year-old decision that rendered the privileges and immunities clause ineffective, saying the clause was not meant to apply outside of federal matters.
"For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the due process clause of that amendment and not under the privileges or immunities clause. We therefore decline to disturb the Slaughter-House holding."
Even more significantly, had the court used the privileges clause, it would have opened the floodgates for incorporating a number of rights that have not yet been brought against the states in the usual piecemeal fashion, such as abortion and gay rights, or grand jury indictment requirements that half the states do not have. The conservative majority certainly would not have wanted such a result.
The only justice who pressed for incorporation using the privileges clause was Clarence Thomas, who concurred with the majority's result, if not its reasoning.
Thomas detailed the history of the Fourteenth Amendment to indicate the framers' immediate purpose for the amendment was the complete protection of the newly freed slaves and their champions everywhere -- not just under federal law.
"In my view, the record makes plain that the framers of the privileges or immunities clause and the ratifying republic understood -- just as the framers of the Second Amendment did -- that the right to keep and bear arms was essential to the preservation of liberty. The record makes equally plain that they deemed this right necessary to include in the minimum baseline of federal rights that the privileges or immunities clause established in the wake of the war over slavery."
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