After sitting on the sidelines while the U.S. Supreme Court mulled a 2008 landmark gun control case affecting the nation’s capital, Arizona Attorney General Terry Goddard has added his name to a legal brief that asks the court to strike a handgun ban enacted by the city of Chicago.
Goddard offered his support to two Chicago residents suing to overturn a city code that prohibits the private ownership of handguns by signing onto an amicus brief authored by Texas Attorney General Greg Abbott. The brief, which is supported by almost 40 state attorneys general, was filed with the U.S. Supreme Court on Nov. 23.
The move by Goddard comes in stark contrast to his abstaining from a landmark case that challenged a similar ban enacted by the District of Columbia. That lawsuit, District of Columbia v. Heller, resulted in a U.S. Supreme Court decision to side with a 65-year-old security guard Dick Heller, who argued the district’s ban violated his Second Amendment rights.
Although the Heller case affirmed the court’s opinion that the Second Amendment applies to individuals, and not just state-sponsored militias, the ruling had the limited effect of only slapping down the gun-control ordinance in Washington, D.C., a federal enclave.
Now supporters of the right to bear arms are putting local ordinances that sharply restrict gun ownership in their crosshairs, and Chicago’s 1982-enacted ban presents a valuable target in light of the court’s decision in Heller.
Goddard said it seems “pretty straightforward” that Chicago’s ban on private ownership of handguns presents an infringement on individuals’ constitutional right to possess firearms.
“This is a question of applying the Second Amendment to the states, and I don’t believe that after the Heller decision there is any good legal reason to say it doesn’t apply to the states,” he said.
The question presented by McDonald v. City of Chicago is whether state and local governments can stray from citizens’ legal protections afforded under the U.S. Constitution, specifically whether the 14th Amendment prevents or permits states from infringing on citizens constitutional right to bear arms.
The answer is expected to depend on whether the court determines the Second Amendment is covered by the 14th Amendment’s due process clause or its privileges or immunities clause.
A U.S. Supreme Court ruling that would find the privileges or immunities clause pertinent to the Second Amendment would likely support the city’s gun ban, said Tim Keller, an attorney with the Institute for Justice, which has filed an amicus brief seeking to end Chicago’s ban on handguns.
However, a ruling that finds the due process pertinent would likely strike Chicago’s ban as unconstitutional, said Keller.
Abbott and 37 attorneys general, including Goddard, argue that as a “fundamental right,” the right to bear arms cannot be denied to citizens under the due-process clause, which reads: “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 due-process clause has been interpreted by the court to guarantee citizens’ constitutional rights to free speech, free assembly and a speedy trial. Rights that prohibit excessive bail and the use of illegally obtained evidence against a citizen also cannot be sidestepped by states under the clause, according to Abbott’s filing.
The 30-page filing by state attorneys general is based on historical events to back the contention that framers of the 14th Amendment viewed the right to bear arms as a fundamental safeguard to self-defense and tyranny.
Abbott draws upon colonists’ uprising over the destruction of arms and ammunition caches by British troops that sparked the Revolutionary War in 1775, as well as post-civil war “Black Codes” implemented by Southern states to disarm newly freed slaves.
“The common thread in these transformative events in our nation’s history was the fundamental importance of the right to keep and bear arms as the ultimate guarantor of all other liberties enjoyed by Americans,” the filing reads.
Briefings from the city of Chicago and others backing the city’s gun ban are due with the Supreme Court by Dec. 30. Benna Soloman, a city attorney, said she expects 15 to 18 amicus briefs from supporters of the ban.
Soloman said the city will ask the court to support early case law that determined that Second Amendment rights are not guaranteed under the 14th Amendment’s privileges or immunities clause.
“The right to keep and bear arms is not fundamental and should not be incorporated through the due-process clause, and the court should not reconsider its settled jurisprudence,” Soloman said.
The attorney said the city would include three briefs from notable historians who conclude the Second Amendment is not a “fundamental right.”
“We’re very comfortable with our view of history,” she said.
Right now, 44 state constitutions (including Arizona), explicitly protect the right to bear arms, while three other states’ constitutions uphold rights to self-defense and defense of property, according to the filing.
The lawsuit has been filed by Chicago residents Otis McDonald, described in court documents as a community activist fearful of drug dealers, and Colleen Lawson, whose home has been targeted by burglars. Both residents wish to own a handgun for self-defense purposes, according to Abbott’s filing.
Prior to being accepted by the U.S. Supreme Court, the ~McDonald~ case was dismissed by an Illinois federal judge and an appeals court panel. Both declined to overturn Supreme Court case law that Second Amendment rights did not apply to states.
Under Chicago’s city code, all privately owned firearms must be individually registered. But the code does not allow the registration of handguns, which effectively makes them illegal within the city limits.