Fri 30 Jul, 2010 12:13 am
By David Rittgers
July 29, 2010 4:00 A.M.
One Month after McDonald
The state of the Second Amendment.
One month ago, the Supreme Court held in McDonald v. City of Chicago
that states, not just the federal government, are prevented from violating
Americans’ Second Amendment right to keep and bear arms.
The Supreme Court did not, however, define the full scope of the right,
nor the standard of review by which challenged statutes will be judged.
In other words: It ain’t over yet. A number of pending lawsuits across
the country will further shape how the Second Amendment will be applied
The first lawsuit of note comes from Chicago.
As soon as the Supreme Court struck down the city’s handgun ban
in McDonald, Mayor Richard Daley worked with the city council to
pass a very restrictive gun-control regime to take the ban’s place.
The National Rifle Association promptly filed suit, challenging,
among other things: a ban on having more than one “assembled and
operable” firearm in the home at any time; a rule forbidding gun
owners to carry their firearms in their own garages, porches, and
places of business; and a policy outlawing gun shops and shooting
ranges in the city in spite of the training and range time the city
requires for obtaining a license.
California, which has long been the darling of gun-control groups
for its heavy firearm restrictions, is also facing a day in court. Gun-show
promoters have been litigating their right to have a show on Alameda
County grounds, an action barred by a county ordinance.
A three-judge panel decided last April that the Second Amendment
applied to California, anticipating the conclusion in McDonald,
but found that the ban on gun shows on county property was still constitutional.
The Ninth Circuit voted to re-hear the case en banc
(that is, all eleven judges would review the decision of the three-judge panel),
but in light of McDonald, that order has been rescinded and the case
remanded to the original panel for reconsideration. Rescinding an
en banc re-hearing is an unusual turn of events, but nothing
follows the norm in this suit. The panel has asked for further briefing
from the parties, indicating that it may reverse itself on the constitutionality
of the gun-show ban.
Also, the Supreme Court has vacated a decision of the Second Circuit
upholding New York’s ban on nunchuks and remanded the case for
reconsideration in light of its holding in McDonald. Though the McDonald
case focused on firearms, the text of the Second Amendment
encompasses “arms” in general, and the Second Circuit will provide
some guidance on the constitutional protection of martial-arts weapons.
Just up the Hudson River, Alan Gura, the attorney who carried the day
in the Heller and McDonald decisions, filed suit to challenge the
discretionary licensing system for handgun carry in Westchester
County, N.Y. At issue is whether license applicants can constitutionally
be required to show a “unique, heightened need for self-defense
apart from the general public” in order to carry a gun.
The Second Amendment allows for no such restriction on the right to bear arms,
and by the time a need for self-defense arises — think, for example,
of a woman who’s being stalked — a potential victim needs to be able
to carry a gun right now, not after pulling together paperwork
and waiting for government approval.
The New York right-to-carry case joins a similar suit that Gura filed
against the District of Columbia in the wake of the Heller decision.
California guns activists have an existing lawsuit challenging the
concealed-carry policies of Yolo and Sacramento counties that will
now be reconsidered in light of the McDonald decision. At least one
Wisconsin prosecutor has declared that he will no longer enforce
the state’s ban on concealed carry because of the recent Supreme Court action.
Yet another Alan Gura lawsuit is a challenge to North Carolina’s
emergency-powers statutes. In essence, whenever a state of emergency
is declared at any level of government in the Tarheel State,
firearms sales or transfers are outlawed, as is carrying a firearm off
one’s own premises (even for those with concealed-handgun licenses).
Officials have declared at least a dozen emergencies since September 2004,
usually encompassing the entire state. This is an on/off switch for
an enumerated right. Why have rights at all if the government can
turn them off at will?
The future of the scope of the Second Amendment is unclear,
but McDonald has guaranteed that, at last, a liberty the Founders
considered worthy of a constitutional amendment will be taken
seriously in courts across the land.