Victory In Chicago
Friday, September 10, 2010
In a landmark decision, the U.S. Supreme Court rules
that the Second Amendment applies to all Americans throughout the
land - but the fight is far from over.
On June 28, 2010 - two years and two days after declaring that
the Second Amendment protects an individual right to possess
handguns for self-defense--the Supreme Court of the United States
declared just as clearly that the Second Amendment protects that
right not just in Washington, D.C., and federal enclaves, but in
every state, city and town in America. The decision is a great
victory for gun owners--but also highlights the need for us to keep
being politically active, now and forever.
The ruling came in the case of McDonald v. City of
Chicago, a challenge to handgun bans in Chicago and Oak Park,
Ill. The plaintiffs in the case were Chicago residents who wanted
to keep handguns in their homes for self-defense, but couldn't do
so under the city's nearly 30-year-old handgun ban.
McDonald and a similar case brought by NRA were
consolidated in the Seventh Circuit U.S. Court of Appeals. The
Supreme Court made NRA a party to McDonald when it decided
to hear the appeal.
In an opinion by Justice Samuel Alito, the Court announced: "We
have previously held that most of the provisions of the Bill of
Rights apply with full force to both the Federal Government and the
States. Applying the standard that is well established in our case
law, we hold that the Second Amendment right is fully applicable to
Joining Justice Alito were Chief Justice John Roberts and
Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas. These
five justices also made up the majority in District of Columbia
v. Heller (2008), in which the Court ruled that the Second
Amendment protects a pre-existing, individual Right to Keep and
Bear Arms and struck down D.C.'s bans on handguns and operable
firearms in the home. Dissenting in McDonald were Justices
Stephen Breyer, Ruth Bader Ginsburg and John Paul Stevens, all of
whom dissented in Heller, and Justice Sonia Sotomayor,
appointed to the Court last year by President Barack Obama.
WHAT'S THE NEXT BIG CASE?
NRA will follow up the win in McDonald with
more legal challenges to ensure that anti-gun politicians and
judges don't turn this latest victory into a practical
Right now, no one knows what case will be the next
milestone in the history of the Second Amendment. It's a sure bet
that hundreds of cases will come up in the next few years. NRA will
work on future cases to advance the Second Amendment as quickly and
effectively as possible. Some cases we'll bring directly. Others
we'll support with briefs and research.
Even more cases will be launched by other groups or
individuals. Some of these cases will advance freedom. Others,
unfortunately, will have little chance of success and a good chance
of making bad law.
Your NRA will be fighting in courts across the country
to make sure our rights are defended and respected. None of our
litigation strategy will work, though, without your
involvement and support. If you are aware of an ongoing or
potential case that might deserve our attention, please e-mail
NRA-ILA's Office of Legislative Counsel at
In McDonald, the Court applied the Second Amendment to
states and cities through the 14th Amendment's Due Process Clause,
an argument that former Solicitor General Paul Clement primarily
relied on during his oral argument on behalf of NRA. (Justice
Thomas also filed a separate opinion arguing that "... the Right to
Keep and Bear Arms is a privilege of American citizenship that
applies to the States through the 14th Amendment's Privileges or
Immunities Clause.") The point was also emphasized in NRA's briefs
authored by Second Amendment scholar Stephen P. Halbrook and
attorney Stephen D. Poss of the firm Goodwin Procter LLP, which has
donated more than 1 million dollars' worth of its lawyers' time to
Second Amendment litigation.
Under longstanding Supreme Court case law, a right is protected
under the Due Process Clause if it is "fundamental" and "deeply
rooted in this Nation's history and tradition." Looking back to the
Heller decision, the Court found that the Right to Keep
and Bear Arms easily met both standards. Not only has self-defense
been recognized as a basic right since ancient times, but the Right
to Keep and Bear Arms was recognized in England and America long
before our country existed.
The Court went on to explain that the Right to Keep and Bear
Arms was also clearly recognized when the 14th Amendment was
adopted to protect the freedmen after the Civil War. 14th Amendment
supporters were strong advocates of an armed citizenry. As one
House member put it at the time, "Disarm a community and you rob
them of the means of defending life. Take away their weapons of
defense and you take away the inalienable right of defending
The Court completely rejected every argument made by Chicago and
its cohorts, as well as those made in the dissenting opinions by
Justice Breyer (joined by Justices Ginsburg and Sotomayor) and by
Justice Stevens (for himself alone).
DEFYING THE COURT:
NRA BACKS LEGAL CHALLENGE TO NEW CHICAGO
WITHIN DAYS OF the McDonald
decision, Mayor Daley and the Chicago City Council enacted the most
restrictive anti-gun ordinance in the United States. Mara Georges,
the top attorney for the city, admitted, "We've gone farther than
anyone else ever has." In response, one of NRA's longtime outside
attorneys, former U.S. Assistant Attorney General Charles J.
Cooper, filed an NRA-supported challenge to many of the worst
provisions of the new law.
Chicago's so-called "Responsible Gun
Ownership Ordinance" is modeled to a large degree on the law the
District of Columbia Council enacted to thumb its nose at the
Supreme Court's Heller decision.
Chicago's new ordinance generally bans
the possession of a firearm anywhere outside the immediate interior
of a home (even in an attached garage), bans the possession of more
than one assembled firearm within the home, bans the transfer of
any firearm except by inheritance, allows the police superintendent
to arbitrarily ban particular handguns as "unsafe," bans adults
between ages 18 and 20 from possessing firearms without the
permission of a parent or guardian, imposes severe gun registration
provisions, generally prohibits the operation of shooting ranges,
requires five hours of training to obtain a permit to merely
possess a firearm at home, and prohibits the possession of laser
sights, which more and more gun owners are adopting for use in
Challenging these provisions are a number
of gun owners and would-be gun owners in Chicago, along with the
Illinois Association of Firearms Retailers--a trade association
whose members would open gun stores and shooting ranges in the
city, if not for the restrictive new law.
Trying to put a positive spin on the
Heller and McDonald rulings, gun control
supporters have claimed that even though each ruling recognized an
individual Right to Keep and Bear Arms for self-defense, each also
gave a green light to all manner of gun control short of a total
ban. In their view, that would include measures such as Chicago's
new law, which are designed to eliminate or discourage firearm
ownership by making it unreasonably difficult and
Of course, Heller did not strike
down D.C.'s explicit handgun ban just to give the court's blessing
to de facto gun bans in other forms. The Court did say it would
likely be constitutional to have "laws forbidding the carrying of
firearms in sensitive places such as schools and government
buildings, or laws imposing conditions and qualifications on the
commercial sale of arms." But clearly, the Court's language did not
approve laws prohibiting the carrying of firearms in a homeowner's
garage, or prohibiting "commercial sales of arms"
It comes as no surprise that Daley is
more interested in limiting gun ownership than in complying with
the decision of our nation's highest court. After the
McDonald ruling was handed down, Daley said, "Too many
people can easily obtain guns in America . . . ," and that he and
others who share his view should campaign in Washington, D.C., for
reenactment of the federal ban on "assault weapons" and magazines
that hold more than 10 rounds, for legislation designed to drive
gun shows out of business, and for the repeal of the federal law
that protects firearm manufacturers from frivolous lawsuits
designed to drive them into bankruptcy.
The NRA will fight those efforts when the
time comes. But for now, Mayor Daley, we'll see you in
First, the Court rejected Chicago's arguments, including its
attempt to rely on foreign law. A right is protected if it is
fundamental in our history and tradition--not those of a foreign
country. Gun bans and other restrictive laws in England, Australia
or Luxembourg can't be used to undermine the rights of Americans.
Further rebuking Chicago, the Court said a right must be protected
even if it has "controversial public safety implications" or might
lead to "extensive and costly litigation."
Next, the Court rejected Justice Stevens' argument that the
rights protected against states ". . . need not be identical in
shape or scope to the rights protected against Federal Government
infringement by the various provisions of the Bill of Rights."
Former Solicitor General Clement effectively rebutted this call
for a "watered down version" of the Second Amendment during his
oral argument on behalf of NRA, and the Court agreed:
"[I]ncorporated Bill of Rights protections 'are all to be enforced
against the States under the 14th Amendment according to the same
standards that protect those personal rights against federal
The Court also rejected Justice Breyer's arguments. Breyer first
argued that the right to arms should not be incorporated because it
is not recog-nized as fundamental by "popular consensus." As the
Court pointed out, there's no legal rule that requires a
"consensus" to support a right--and even if there were, the "friend
of the court" brief joined by 58 senators and 251 House members,
and another brief by 38 state attorneys general, clearly show a
consensus in support of the right.
Second, Justice Breyer argued that the right does not protect
minorities or persons neglected by those in power--a strange claim
that (as the Court noted) several pro-gun briefs submitted by women
legislators and by representatives of minority groups rebutted in
Third, Justice Breyer complained that enforcing the Second
Amendment would limit experimentation by states. (Justice Stevens
had a similar complaint.) But as the Court said, "... this is no
more remarkable with respect to the Second Amendment than it is
with respect to all the other limitations on state power found in
the Constitution." The whole point of the Bill of Rights is to stop
Finally, the Court rejected Justice Breyer's claim that
incorporating the Second Amendment would force judges to assess the
costs and benefits of firearm restrictions. On that point, the
Court pointed out that it had "specifically rejected" Justice
Breyer's suggestion of an "interest-balancing test" in his
dissenting opinion in Heller.
That point is worth a closer look, because it reveals the
strategy that opponents of our Right to Keep and Bear Arms plan to
use. Justice Ginsburg said in a December 2009 speech that
dissenting opinions should be used to guide a "future, wiser"
Court--and pointed to the Heller case as an example.
In McDonald, Justice Breyer made clear that this is his
plan when he pointed to recent criticisms of Heller by
academics who disagreed with the opinion's analysis of history. He
asked, "If history, and history alone, is what matters, why would
the Court not now reconsider Heller in light of these more
recently published historical views?"
For gun owners, the bottom line isn't history--it's politics. If
gun owners want to avoid the kind of "future, wiser" Court that
would reverse both Heller and McDonald, they need
to pay close attention to elections--starting right now.
After all, while the Supreme Court sets itself apart from the
"political branches," the "political branches" that nominate and
confirm Supreme Court justices are the branches that NRA members
and other gun owners can directly influence. Case in point: NRA
members helped elect President George W. Bush. President Bush
nominated Chief Justice Roberts and Justice Alito, who held in
favor of our Right to Keep and Bear Arms in Heller and
McDonald. On the other hand, President Obama nominated
Justice Sotomayor, who joined a dissenting opinion in
McDonald, saying the Second Amendment right is not
fundamental. Clearly, elections matter.
So, while McDonald is a great victory for NRA, gun
owners and all who care about freedom, it's yet another reminder
that freedom isn't free. Without your commitment in the past, this
victory would have never happened. Without your energy in the
future, it could be reversed. We must remain vigilant in protecting
our rights for decades to come.
STANDING ON THE SHOULDERS OF GIANTS:
SECOND AMENDMENT SCHOLARSHIP PAYS OFF
GUN OWNERS CELEBRATING VICTORY in the
McDonald case owe thanks to dozens of excellent lawyers
who represented both those directly challenging the Chicago law as
well as the many groups that filed "friend of the court" briefs in
support of protecting the Right to Keep and Bear Arms against state
and local infringement.
NRA's legal team included former
Solicitor General Paul Clement, Second Amendment scholar Stephen P.
Halbrook and corporate attorney Stephen D. Poss. Between
McDonald and other cases, Poss's firm, Goodwin Procter
LLP, has contributed thousands of hours of its attorneys' very
valuable time to pro bono work in support of our Right to Keep and
Bear Arms. In addition, NRA-ILA General Counsel David Lehman and
NRA General Counsel Robert Dowlut, a longtime distinguished Second
Amendment scholar in his own right, played a significant role in
managing this litigation.
But no matter how skilled, lawyers alone
could not have prevailed in McDonald (or in
Heller two years ago) without the efforts of scholars who,
over more than three decades, laid out the evolution of the right
to arms, the legislative histories of the Second and 14th
Amendments, and careful analyses of related court decisions. Both
of the high court's decisions draw heavily upon the evidence these
dedicated men and women have brought to light. While it's
impossible to give full credit here to all the scholars who
contributed to these victories, a few deserve special
In McDonald, the Court relied
heavily upon the research of Halbrook himself in concluding that
the right to arms is "fundamental to our scheme of ordered liberty
and justice" and "deeply rooted in this nation's history and
tradition," and is therefore protected under the 14th Amendment's
Due Process clause.
The Court's Heller decision also
cited the work of historian Joyce Lee Malcolm and civil rights
lawyer Don Kates. Professor Malcolm, the nation's preeminent expert
on the English right to arms, has shown, as the Court stated in
Heller, that "By the time of the founding [of the United
States], the right to have arms had become fundamental for English
subjects." The Framers of the Second Amendment perceived the
American right to arms in the same way.
Kates is legendary among Second Amendment
scholars for having written, in 1983, the first comprehensive essay
on the right to arms that had appeared in a major law review,
inspiring many others to pursue additional research. The
Heller opinion didn't just cite Kates' essay; just as
Kates had, it explained what the Framers intended the Second
Amendment to accomplish by detailing the meaning of each of the
amendment's words and phrases, both separately and as a
Of course, many other scholars have
contributed significantly to our cause. In his concurring opinion
in McDonald, Justice Clarence Thomas drew heavily on the
work of professors Robert Cottrol and Ray Diamond, whose
pathbreaking research on the racial aspects of the Second Amendment
debate began two decades ago.
The Court's McDonald opinion and
Justice Thomas' opinion also cited David Hardy's work for the
proposition that the leading congressional proponents of the 14th
Amendment at the time of its adoption believed that it made the
entire Bill of Rights applicable to the states. Hardy, like many
other Second Amendment scholars, has studied these issues for
decades, having written his first article on the Second Amendment
in the mid-1970s.
Patience has always been a trait of the
Second Amendment's opponents, who believe that all setbacks to
their cause are temporary, and that their victory is only a matter
of time. But as these scholars' stories show, patience has also
served the Second Amendment's allies well.