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Gun rights case likely to be landmark Supreme Court ruling

Justices will hear a challenge to Chicago's handgun ban and decide whether the 2nd Amendment can be used to strike down state and local gun restrictions.

February 28, 2010|By David Savage
  • Otis McDonald says he is worried about the armed drug dealers on the streets in his Morgan Park neighborhood. "I only want a handgun in my home for my protection," said the 76-year-old.
Otis McDonald says he is worried about the armed drug dealers on the streets… (Scott Strazzante / Chicago…)

Reporting from Washington — When the Supreme Court takes up a challenge this week to Chicago's strict ban on handguns, it will hear two contrasting visions of how to make the city safer and to protect its residents from gun violence.

On one side are the law-abiding city dwellers who say they need guns to protect themselves from armed thugs. Among them is Otis McDonald, who says he is worried about the armed drug dealers on the streets in his Morgan Park neighborhood.

"I only want a handgun in my home for my protection," said McDonald, 76.

On the other side are prosecutors and police who say the city's ban on handguns gives them a legal basis for confronting gang members and drug dealers.

"If an officer sees a bulge in a pocket, he can stop and frisk that person," said Cook County State's Attorney Anita Alvarez.

In Chicago, New York and elsewhere, police say these stop-and-frisk searches make the streets safer by disarming thugs. "If this [ban] is overturned, we think there would be an increase in violence," Alvarez said.

Regardless of who prevails, the case of McDonald vs. Chicago figures to be a landmark in the history of the 2nd Amendment and its "right to keep and bear arms." It will decide whether the 2nd Amendment applies only to federal gun laws or if it can be used across the nation to strike down state and local gun restrictions.

A ruling overturning the Chicago ordinance would open the door to gun rights suits nationwide. "You will see a wave of lawsuits against state and local gun laws. This is just the first shot in a broad-based gun rights offensive," said Dennis Henigan, a lawyer for the Brady Center to Prevent Gun Violence in Washington.

The city's lawyers say firearms have been regulated throughout American history -- and without interference from federal judges. In the 1770s, Boston, Philadelphia and New York prohibited discharging a gun within the city. Even in the Wild West, cattle towns like Dodge City, Kan., required cowboys to turn in their guns.

But defenders of the 2nd Amendment say their goal is to restore the "right to keep and bear arms" to its proper place as a constitutional right.

In the end, the Supreme Court could decide that the right to have a gun applies only at home. If so, Chicago and other cities could adopt strict limits on public possession of a handgun even if the current ordinance is struck down.

But gun rights advocates say the 2nd Amendment applies more broadly and protects a right to have a gun for self-defense. In Washington, they filed a suit seeking a right to have a gun on the streets. In California, lawyers for the National Rifle Assn. say they plan to challenge the policy in Los Angeles County and elsewhere of refusing to issue "concealed carry" permits to most gun owners who want to carry a weapon in public.

But before such claims go forward, the Supreme Court must decide whether the 2nd Amendment reaches beyond federal laws. Though the answer may seem obvious today, the Bill of Rights, including the 2nd Amendment, has historically been as limiting only laws from Washington.

The 1st Amendment begins, "Congress shall make no law . . . abridging the freedom of speech, or of the press." Until the early part of the 20th century, it shielded Americans only from federal restrictions on free expression.

The 2nd Amendment says, "A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." Throughout the 19th century, and until quite recently, the high court maintained that this clause was intended to give states the power to control armed militias.

But in recent decades, most Americans have come to believe the 2nd Amendment protects their right to have a gun, regardless of whether they serve in a militia.

Two years ago, the high court agreed. By a 5-4 vote, the justices struck down a handgun ban in Washington, D.C., and said the 2nd Amendment gives individuals a right to have a gun for self-defense. However, since the district is a federal enclave, the justices did not rule on whether state and local ordinances could be challenged under the 2nd Amendment.

Gun rights advocates say the justices should declare that the right to keep and bear arms is a fundamental right, like free speech, and is protected from infringement by local, state or federal laws.

Chicago Mayor Richard M. Daley countered that bringing more guns into the city would make matters worse. "Does anyone really believe that the founders of our nation envisioned that guns and illegal weapons would flood our streets and be used to kill our children and average citizens?" he asked at a news conference in Washington.

The Supreme Court will hear arguments in the case on Tuesday and issue a ruling by late June.

david.savage@latimes.com

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