The National Law Journal
The U.S. Supreme Court on Monday expanded the reach of the Second Amendment to the states, opening the door to challenges of local handgun laws across the country.
In McDonald v. Chicago, a 5-4 majority said that a handgun ban in Chicago may have violated Second Amendment rights established in the Court's landmark 2008 decision in District of Columbia v. Heller. Justice Samuel Alito Jr., who delivered the majority opinion for the Court in McDonald v. Chicago, wrote that the right to keep and bear arms is "among those fundamental rights necessary to our system of liberty." Alito's 45-page opinion said the right is fully binding on the states -- a move limiting, but not eliminating, local and state efforts to craft measures to combat social problems.
"Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is 'the central component' of the Second Amendment right," Alito wrote. Joining Alito were Chief Justice John Roberts Jr. and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas. The decision in Heller, which struck down a District of Columbia law that prohibited the possession of handguns in the home, did not universally mean a person can keep and carry any weapon in any manner. Alito adopted that language, providing some level of reassurance to anti-gun-violence advocates.
The Court's ruling in McDonald does not expressly void Chicago's handgun ban. Instead, the Court reversed and remanded for additional proceedings.
Lead plaintiff Otis McDonald, a community activist in Chicago, filed suit in the U.S. District Court for the Northern District of Illinois following the Supreme Court's ruling in Heller. The suit sought a declaration that Chicago's handgun ban violates the Second and 14th amendments. In June 2009, the 7th U.S. Circuit Court of Appeals affirmed the dismissal of the suit.
Alan Gura, a lead attorney for the plaintiffs in the Heller and McDonald cases, predicted subsequent handgun challenges based on the Court's ruling Monday. "This is not going to be the end of gun laws, of course, as states and localities continue to regulate guns in the interest of public safety," said Gura of Alexandria, Va.'s Gura & Possessky, after Monday's ruling. "However, there are, unfortunately, laws that have no public benefit whatsoever and exist merely to harass and annoy gun owners to make gun ownership difficult, expensive and burdensome. Those laws are going to get struck down after today's ruling."
Gura declined to say whether -- and where -- he was planning to bring additional challenges.
Justice John Paul Stevens wrote a 57-page dissent in which he said the 14th Amendment's guarantee of "substantive due process" does not mean an individual has a right to keep a firearm for self-defense. "The costs of federal courts' imposing a uniform national standard may be especially high when the relevant regulatory interests vary significantly across localities, and when the ruling implicates the States' core police powers," Stevens wrote.
Justice Stephen Breyer's 31-page dissent was joined by justices Ruth Bader Ginsburg and Sonia Sotomayor. "[T]here is no popular consensus that the private self-defense right described in Heller is fundamental," Breyer wrote. Public opinion, he said, is divided over the level of firearm regulation, which Breyer called "a hotly contested matter of political debate."
"The fact is that judges do not know the answers to the kinds of empirically based questions that will often determine the need for particular forms of gun regulation," Breyer wrote. "Nor do they have readily available ‘tools' for finding and evaluation the technical material submitted by others."
Breyer said there is no need to send judges off on what he called "mission-almost-impossible" when legislators are best suited for such a fact-intensive examination.
Nixon Peabody partner Charles Dyke in San Francisco, an attorney for the Chicago Board of Education, which participated as a friend-of-the court in support of upholding the handgun ban, told reporters he expects the "vast majority" of gun restrictions in the country will be "just as valid today as they were yesterday."
In an interview, Gura praised the lawyers for Chicago, whom he called "professional and easy to work with." He was drawing a sharp contrast to District of Columbia attorneys in the Heller case -- attorneys that Gura has accused of unnecessarily prolonging the litigation.
Gura remains in a fee dispute with the District of Columbia. Earlier this month, he filed an amended fee petition in the U.S. District Court for the District of Columbia seeking more than $3.1 million. "Having vindicated the constitutional rights of the people of Chicago, the city of Chicago should be aware that the meter is on," Gura said.
http://www.law.com/jsp/article.jsp?id=1202463104231&Justices_Expand_Second_Amendment_Gun_Rights_to_States
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