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Jun 21 2008


Published by Mark Taff

Question Index

What is the purpose of this lawsuit?

Our goal is to require state and local officials to respect our Second Amendment right to keep and bear arms. Chicago’s handgun ban, and some of its gun registration requirements, are clearly unconstitutional.

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What laws are you challenging?

We are challenging Chicago’s handgun ban, because the possession of handguns by responsible, law abiding adults is protected by the Second Amendment.

But the Second Amendment also protects Americans from gun laws that serve no useful purpose other than to harass and frustrate gun ownership. Apart from the handgun ban, certain other Chicago gun laws and regulatory practices are plainly unconstitutional.

Chicago requires that guns be registered, and re-registered, and re-registered again, over and over, each and every year. Each time, a tax is imposed, forms must be filled out, photographs submitted. A person who owns more than one gun will find herself constantly in the process of registering each gun as it comes due for expiration. If registration is to be required, once is enough. We are challenging the endless nature of the registration process.

Chicago also requires that guns be registered before they are acquired. The code does not allow people a reasonable time within which to register their guns. Often times, this requirement makes gun registration impossible. Chicagoans find it difficult, at best, to lawfully register guns they acquire outside city limits or even from the federal government’s Civilian Marksmanship Program. If the city wants to have guns registered, it should make it practical to register guns. We are challenging the requirement that registration always precede the acquisition of a firearm, so that people can lawfully bring to Chicago guns they acquired elsewhere and, at least in some circumstances, guns they acquire within city limits but cannot practically register prior to their acquisition.

Finally, we are challenging the bizarre penalty imposed by city officials for failure to comply with its registration scheme: a ban on the “registerability” of the gun sought to be registered. Imagine if you bought a car but somehow failed to satisfy the DMV’s registration requirement. Should you have to throw that particular car away, even if the government will allow you to drive another, identical vehicle? Rendering a particular gun permanently “non-registerable” within the City of Chicago because its registration once lapsed, or because of some defect in the application process, makes no sense. Even Mayor Daley and the City Council recognized this much, endorsing a temporary amnesty plan allowing people a brief window within which to register guns whose registration had lapsed. Amnesty is not the solution to the non-registerability mess. If the city truly believes in gun registration, it should permit gun registration.

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Are you against allowing the government to regulate guns? Do you oppose all gun laws?

No. As the Supreme Court has made clear, there are no absolute rights under the Second Amendment. But when the government seeks to regulate guns, questions should be asked. Do the proposed laws make any sense? Do the proposed laws interfere with the individual right to keep and bear arms?

The laws we are challenging – banning guns and imposing endless bureaucratic burdens on gun ownership – plainly go too far.

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Who are you? Who is behind this litigation? What can I do to help?

Otis McDonald, Adam Orlov, and Colleen and David Lawson are ordinary, law abiding Chicagoans who simply want to exercise their Second Amendment rights. You can read their stories. Joining these individuals as plaintiffs are the Second Amendment Foundation and the Illinois State Rifle Association. The lawsuit is backed by the Second Amendment Foundation. You may make a tax-deductible donation in support of our work.

The legal team is headed by Alan Gura, the noted civil rights attorney who successfully led and argued the landmark challenge to Washington, DC’s gun ban before the Supreme Court. Litigator David Sigale, of Lisle, Illinois, is local counsel in Chicago.

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Doesn’t the Supreme Court’s decision in Heller prevent the government from banning guns and imposing silly gun restrictions?

The Heller decision only prevents the Federal government from banning guns. It does not immediately apply to state and local gun bans. In Heller, the Supreme Court confirmed that individuals in our country have Second Amendment rights to keep and bear arms, but the Court did not say whether this important right binds just the federal government, or extends with equal force to states and localities.

The Bill of Rights directly binds only the federal government, not state and local governments. After the Civil War, Americans recognized that state and local governments were often a more immediate threat to their liberties than was the federal government. The Fourteenth Amendment was intended to remedy this problem, and prevent states and localities from violating our civil rights. The southern states’ infringement of the freedmen’s Second Amendment right to keep and bear arms was a prime motivator for enacting the Fourteenth Amendment.

Unfortunately, the Supreme Court did not immediately give the Fourteenth Amendment its full effect. Rather, the Supreme Court embarked on a process where, on a case by case basis, it would decide whether a right secured by the Bill of Rights is important enough to justify “incorporation” through the Fourteenth Amendment so as to bind state and local governments.

To date, most of the Bill of Rights has been incorporated against the states through the Fourteenth Amendment. But the question of whether the Second Amendment applies to the states remains open.

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Didn’t the Supreme Court reject application of the Second Amendment to the states?

The Supreme Court only rejected incorporation of the Second Amendment in the 1870s and 1880s, when it was in the habit of rejecting the incorporation of all of our rights. Those specific Second Amendment cases haven’t been explicitly overruled, but they are no longer good law.

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Why should the Second Amendment apply to states and localities?

In asking whether a right should apply to bind the states and localities, the Supreme Court asks whether it is a right that is “implicit in the concept of ordered liberty” or “deeply rooted in our nation’s history and traditions.”

The right to keep and bear arms clearly meets this test. The right to arms is based upon the ancient right of human self-defense and self-preservation, and is also intended to allow the people, in time of crisis, to maintain or restore the proper constitutional order in the event that our government becomes tyrannical, or if the country should be invaded by hostile forces. Even the Second Amendment’s preamble tells us that one reason for having the right to arms is to preserve the people’s ability to act as militia, which the Framers believed was “necessary to the security of a free state.” Indeed, the Fourteenth Amendment and some of its related legislation was aimed squarely at preventing the states from disarming the freedmen in the wake of Reconstruction. The Fourteenth Amendment Congress was very sensitive to the idea that state governments respect the Second Amendment rights of all Americans.

As a practical matter, Americans are regulated most directly by the governments that are closest to them. Chicagoans’ First Amendment speech rights, for example, would mean little if the Chicago police could ban newspapers critical of the local government. Nor would the Fourth Amendment mean much if local police could burst into homes without ever obtaining warrants. Likewise, Chicagoans are being denied their Second Amendment rights. They need, and deserve, to have their rights protected from violation by their local governments.

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