Guns out of Heller

I n the last article, I discussed the Supreme Court’s landmark case of District of Columbia v. Heller and its finding that the Second Amendment guarantees an individual right that the federal government cannot infringe upon. That case paved the way for this year’s case of McDonald v. City of Chicago, which has a direct impact on your life. Depending upon who you ask, the impact of the right will either be positive or negative. The McDonald Court found that the Second Amendment applied to the states.

The City of Chicago had one of the most restrictive gun control ordinances in the nation. The ordinance stated that no person could possess any firearm unless he or she had a valid registration certificate. The ordinance further prohibited the registration of most handguns, as opposed to shotguns or rifles. Thus, handguns were banned in Chicago. Otis McDonald was an elderly man who lived in a dangerous neighborhood and sought to have a handgun in his home for the purposes of self-defense. He sought a declaration that the handgun ban in Chicago violated his Second and Fourteenth Amendments. The U.S. District Court denied the argument that the ban was unconstitutional and the Court of Appeals for the Seventh Circuit upheld the District Court’s decision.

The Supreme Court built upon the 2008 Heller decision discussed in last week’s article by finding that the Second Amendment also prevents the states from banning guns. The Court determined the Equal Protection Clause and substantive due process in fact “incorporated” the Second Amendment into the states. Incorporation means that certain aspects of the Bill of Rights provide a minimum level of right, wherein the states cannot be more restrictive than the federal government. In this case, states, at a minimum, cannot ban handguns in the home. The Court rejected the opposing argument based on the “Privileges or Immunities Clause” of the Fourteenth Amendment, to be discussed next week.

The Court reasoned that self-defense is a basic right and that it is the “central component” of the Second Amendment. As in Heller, the Court found that this is an individual right and turned to the post- Civil War history of the Reconstruction Era where black citizens were denied the right to protect themselves against the ravages of Ku Klux Klan and other racist organizations. The Court pointed out that even if Southern States democratically and properly passed gun laws that prohibited all citizens from having guns (i.e. treating all citizens equally), black citizens would still be discriminated against because state officials would oftentimes be the instigators of violence against the former slaves. Therefore, the right to possess a firearm would offer a preliminary and fundamental check against uninhibited attacks.

The dissent argued that there is no popular consensus that possessing

handgun was fundamental, that the right does not protect minorities, that the incorporation of the right against the states was a violation of the relationship between state and federal governments, and that the opening of this right will require federal judges to answer “difficult empirical questions” outside of their expertise (opening the floodgates of litigation). The dissent further argued that citizens that live in high-crime neighborhoods would be detrimentally affected by the allowance of the right, and that no liberty interest exists in possession of a handgun.

Nonetheless, the majority of the Court rejected these arguments by essentially stating that owning and possessing a handguns is a basic right that cannot be violated, and even if people are hurt because of the right, that is the consequence of living in a free society. For example, guilty criminals whose rights are violated have evidence that tends to show guilt thrown out because the state acted improperly, like obtaining a confession without reading the suspect his rights. Thus, right now, we have the right to have handguns in our homes to protect ourselves, but that right can and will be regulated. Next week, the privileges and immunities clause and what it means to gun rights.

Erik J. Honkanen, Law Office of Erik J. Honkanen, S.C., U.S. Bank Plaza, 230 1st St. South, STE 101, Virginia, MN 55792, 218-749-3047, erik@honkanenlaw.com