ChicagoGunCase.com

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WASHINGTON, D.C. – The U.S. Supreme Court announced today that it will hear the case of McDonald v. City of Chicago, and decide whether the right to keep and bear arms secured by the Second Amendment protects Americans from overreaching state and local governments.

At issue is a 27-year-old Chicago law banning handguns, requiring the annual taxation of firearms, and otherwise interfering with the right of law-abiding individuals to keep guns at home for self-defense. The case was brought on behalf of four Chicago residents, the Second Amendment Foundation, and the Illinois State Rifle Association.

Last year, in the landmark case of District of Columbia v. Heller, the Supreme Court held that the Second Amendment guarantees an individual right to keep and bear arms. However, as that case concerned the actions of the District of Columbia government, a federal entity, the high court was not called upon to decide whether the right bound states and local governments. Over the years, almost the entire Bill of Rights has been held to apply to state and local governments by operation of the Fourteenth Amendment.

“The freedoms we enjoy as Americans are secured to us against violation by all levels of government,” noted Alan Gura, of Gura & Possessky, PLLC, lead counsel for the McDonald plaintiffs. “State and local politicians should be on notice: the Second Amendment is a normal part of the Bill of Rights, and it is coming to your town.”

Otis McDonald, a Chicago resident since 1952 who led the fight to integrate his union local in the 1960s and is a plaintiff in the case, welcomed the news.

“I am grateful the Supreme Court has agreed to hear this case,” McDonald said. “I now pray that the Court secures me and all other law-abiding citizens the right to defend ourselves and our families.”

SAF founder Alan Gottlieb said the case is of paramount importance to American citizens, to see that their constitutional rights are respected not only by the Congress, but by state and local governments.

“SAF was delighted to bring this case in cooperation with the Illinois State Rifle Association and the four local plaintiffs because a gun ban is no less onerous to civil rights in Chicago than it was in the District of Columbia,” Gottlieb observed. “Such a law cannot be allowed to stand unchallenged.”

Chicago attorney David Sigale commented, “The City of Chicago cannot take from millions of Americans the fundamental freedom of self-defense in one’s own home. We are confident the Court will stand on the side of the law-abiding citizens and the Bill of Rights.”

“We’re pleased to hear that the Supreme Court has decided to take a look at Chicago’s gun laws,” added ISRA President Don Moran. “In this time of economic uncertainty and increasing lawlessness, the good people of Chicago ought not have to choose between violating Chicago’s gun ban, and protecting themselves and their loved ones.”

The Chicago gun ban challenge will likely be among the most closely watched constitutional law cases in decades. At stake is not just the question of whether the Second Amendment secures the right to arms against state and local governments, but also the extent to which the Supreme Court preserves individual liberty against encroachment by state and local governments.

Oral argument will possibly be scheduled early this coming winter, with a decision expected by June 2010. Gura will argue the case on behalf of the McDonald plaintiffs.

Back on August 5, the city filed its opposition to our petition for certiorari.

Today, we’ve submitted our reply.

And now, we wait.  The petition will be considered at the Court’s first conference after the long summer break.

The Constitutional Accountability Center has weighed in with an excellent amicus brief supporting our petition to the Supreme Court, filed on behalf of constitutional law professors Richard Aynes, Jack Balkin, Randy Barnett, Michael Curtis, Michael Lawrence, and Adam Winkler.

We are gratified that thirty-four of the states have weighed in support of our case at the Supreme Court.

Texas, leading a group of thirty-three states, filed one amicus brief urging the Court to hear our case and hold the Second Amendment binds state and local governments. California separately filed an amicus brief urging the same.

Here is the press release from Texas Attorney General Greg Abbott:

Texas Attorney General Abbott Files Brief with United States Supreme Court; Takes Action to Protect Texans’ Second Amendment Rights

Texas Amicus Brief Joined by 32 State Attorneys General

AUSTIN - Texas Attorney General Greg Abbott today filed a brief with the U.S. Supreme Court that defends Americans’ right to keep and bear arms. The amicus brief, which was filed on behalf of 33 state attorneys general, supports a legal challenge by Otis McDonald, a community activist who lives in a high-crime Chicago neighborhood. McDonald’s work to improve his neighborhood has subjected him to violent threats from drug dealers, but city ordinances prohibit him from obtaining a handgun to protect himself. The state attorneys general argue that cities cannot simply ignore the Second Amendment of the U.S. Constitution and impose a blanket ban on handguns.

“Last year, the Supreme Court of the United States struck down the District of Columbia’s handgun ban and held that the Second Amendment protects individual Americans’ right to keep and bear arms,” Attorney General Abbott said. “The brief filed today urges the nation’s highest court to hear community activist Otis McDonald’s challenge to an ordinance that prohibits him from possessing a handgun to protect himself from the criminals he has worked to eradicate from his high-crime neighborhood. Today’s amicus brief reflects an effort by more than thirty attorneys general to defend law-abiding Americans’ constitutionally protected right to keep and bear arms.”

The states’ amicus brief says: “The right to keep and bear arms under the Second Amendment is not just a ‘fundamental’ liberty interest. In the Anglo-American tradition, it is among the most fundamental of rights because it is essential to securing all our other liberties. The Founders well understood that, without the protections afforded by the Second Amendment, all of the other rights and privileges ordinarily enjoyed by Americans would be vulnerable to governmental acts of oppression.”

According to the states’ amicus brief, the Second Amendment of the U.S. Constitution applies to states under the Fourteenth Amendment, and the right to keep and bear arms is a right that states have long recognized. In fact, 44 state constitutions protect their residents’ right to bear arms. The brief adds: “The submission of this amicus brief provides further evidence of the States’ understanding of the fundamental importance of the arms-bearing right guaranteed by the Second Amendment.”

“Just as local governments cannot constitutionally act as ‘laboratories’ for initiatives to abrogate their citizens’ right to free speech or their freedom from unreasonable searches and seizures, nor can they nullify the fundamental right to keep and bear arms secured by the Second Amendment,” the amicus brief states.

“The states’ amicus brief acknowledges that some firearms regulations are permissible, including in circumstances where they are necessary to prevent violent felons from owning guns.

The states ask the U.S. Supreme Court to hear both the McDonald case and National Rifle Association of America Inc., et al v. City of Chicago, Ill., et al.

The states that joined Texas in the amicus brief are: Alabama, Alaska, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Utah, Virginia, Washington, West Virginia and Wyoming.

My latest law review article is out…

Heller and the Triumph of Originalist Judicial Engagement: A Response to Judge Harvie Wilkinson,

56 UCLA L. Rev. 1129 (2009)

Here is the abstract:

Judge J. Harvie Wilkinson criticizes the U.S. Supreme Court’s landmark decision in District of Columbia v. Heller through the lens of post-Roe judicial conservatism, a doctrine that exalts judicial deference to the political branches above the interest in individual liberty. But that vision is incompatible with the sort of judiciary the Framers established, and Wilkinson’s prescription does not lay out neutral guidelines for use of the judicial power. In Heller, the Supreme Court acted exactly according to Constitutional design, enforcing a fundamental right against recalcitrant political forces. Not just conservatives, but all Americans, should rejoice in the decision.

Today we filed our petition to the Supreme Court.

Yesterday the Seventh Circuit announced its decision in our case.

It wasn’t surprising, considering the panel’s comments at oral argument.  Of course this decision is completely wrong.  The Seventh Circuit should have conducted a modern selective incorporation analysis and held the Second Amendment incorporated.  The dicta suggesting that the right to self-defense may be abrogated by statute, and that the exercise of fundamental individual rights can be curtailed at the state level as a nod to federalism, is particularly troubling.

In any event, Chicago’s gun ban is now one step closer to its demise.  Our petition to the Supreme Court will be filed very soon.  Watch this space for details….

MP3 here

I’ve now posted the various amici briefs for the other side on our case filings page.

Our reply briefs will be filed May 14, and will be up on the site as well shortly after they’re in.

Earlier this week, the Ninth Circuit Court of Appeals held that the Second Amendment does, in fact, bind state and local governments via application of the Fourteenth Amendment.  The court’s opinion in the landmark case of Nordyke v. King adopts the same logic as our arguments in this case, with respect to selective incorporation under the Fourteenth Amendment’s Due Process Clause.  And it disposes of many of the same tired arguments raised by Chicago in defense of its indefensible gun ban.  Congratulations to the Nordykes’ lawyer, Don Kilmer, for a job well done.

Although the regulations at issue in Nordyke were upheld, we suspect that other irrational and arbitrary state- and local-level gun laws in the Ninth Circuit, serving no useful purpose, will eventually yield to the Second Amendment rights of the American people.  And we eagerly anticipate the day – ever closer – that Chicago residents will enjoy their Second Amendment rights as well.

Towards that end, the Seventh Circuit has now scheduled argument in our case for Tuesday, May 26, 2009, at 9:30 a.m.  I look forward to arguing the matter.  Have a great Memorial Day weekend.