Self-Defense vs.Municipal Gun Bans

When Hale DeMar shot an intruder in his house, he may well have saved his children's lives. So why was he charged with a crime?

Robert VerBruggen from the June 2005 issue

(Page 3 of 4)

Concerning the bill, Michna says "the downstate mentality is that guns are there for your protection and so forth, and no downstate legislator is going to come out and vote against something like that. If you say what really is true about handguns, people are going to twist it and turn it and turn you into some kind of abolitionist."

The bill's opponents raised two issues: local control and the possibility that the law might encourage people to own handguns. "Local control has nothing to do with denying what I consider a basic right under the state and federal constitutions," Petka says. "A village can no more deny self-defense than they can pass an ordinance that you can't publish articles in their territory." Petka does not deny the law might encourage handgun ownership, but he suggests handguns pose less of a danger to neighbors than the more-powerful shotguns and rifles that Wilmette's ordinance permits.

The Illinois General Assembly sided with Petka. In May 2004 the House passed the bill by a vote of 90 to 25, the Senate by a vote of 41 to 16. Both votes surpassed the three-fifths majority necessary for a veto override, and on August 20 Gov. Rod Blagojevich (a Democrat) made one necessary. In November the Senate and the House overrode his veto by votes of 40 to 18 and 85 to 30, respectively.

Condoms, Porn, and Weaponry

In early February 2004 the Chicago Tribune announced that Hale DeMar was challenging Wilmette's handgun ban in Cook County Circuit Court. DeMar invoked the Second Amendment in an interview with the Tribune, but it was the last time anyone mentioned the right to keep and bear arms in connection with the case. DeMar's attorney, Robert Orman, instead argued that the ban violated the right to privacy; was "arbitrary and capricious," in violation of the 14th Amendment's Due Process Clause; and conflicted with another local ordinance that allows residents to discharge firearms in self-defense.

Only the privacy claim received media attention. The Constitution does not mention a right to privacy but does imply one (in the Fourth Amendment's prohibition of "unreasonable searches and seizures," for example), and privacy is a part of America's common law heritage. The Supreme Court has cited privacy in decisions protecting abortion rights, access to birth control information, possession of pornography in the home, and sodomy between consenting adults. One of Orman's briefs cited Paris Adult Theatre I v. Slaton, a 1973 case that held pornography in theaters open to the public is not protected by the right to privacy. The ruling stated, "This privacy right encompasses and protects the personal intimacies of the home, the family, marriage, motherhood, procreation, and child rearing." The handgun ban, Orman claimed, violated this right.

In her reply brief, Mary Beth Cyze, assistant corporation counsel for Wilmette, argued that constitutional privacy protection applies only to "fundamental" rights, and that the courts have never put owning a handgun in that category. "It is difficult to imagine a scenario under which a ban on one category of weapons, i.e., handguns, impinges on a 'personal' or 'intimate' matter even vaguely resembling abortion, contraception or procreation," she wrote.

Cyze pointed out that Orman's reasoning was similar to that of 7th Circuit Judge John Coffey, who wrote a privacy-based dissent in Quilici v. Morton Grove. "Surely nothing could be more fundamental to the 'concept of ordered liberty' than the basic right of an individual, within the confines of the criminal law, to protect his home and family from unlawful and dangerous intrusions," Coffey wrote. That argument, Cyze said, had been considered and rejected by the 7th Circuit.

Orman also argued that the ordinance was "arbitrary and capricious as applied to [DeMar] under the facts and circumstances of this case" and therefore a violation of his right to due process. Courts can strike down decisions or laws as "arbitrary and capricious" if they are unreasonable or do not logically relate to a legitimate function of government. Orman offered six points to back this assertion, most of them relating to DeMar's right to protect himself, his family, and his home. "The sole and only realistic protection for most real and decent people in their homes is the handgun," he contended. As Richard Pearson, director of the Illinois State Rifle Association, put it, a .38-caliber revolver is "not too powerful, and it's not too big."

But Cyze argued that DeMar was free to shoot Billings with a rifle or shotgun, adding that it was legally irrelevant whether a handgun is the safest weapon for in-home use. She offered a similar reply to Orman's claim that Wilmette's gun ban contradicted its ordinance allowing citizens to fire weapons in self-defense.

Orman's briefs did not mention the Second Amendment: "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." Given the failure of the challenges to Morton Grove's ban, the omission was not surprising.

Pleading the Second

The U.S. Supreme Court has never struck down a gun control measure on Second Amendment grounds. In the last Second Amendment case it heard, United States v. Miller (1939), the Court ruled that a ban on sawed-off shotguns did not violate the Constitution because "it is not within judicial notice that [such weapons are] any part of the ordinary military equipment or that [their] use could contribute to the common defense." This ruling certainly suggested that some categories of weapons are legitimate targets of legislation. Orman called the Second Amendment issue "a matter of settled law." Cyze went so far as to say "nobody would suggest that the Second Amendment applies to an individual."

Stephen Halbrook would. A Virginia-based attorney who has taken part in numerous high-profile gun cases (he helped fight the Morton Grove ban), Halbrook is co-author of Supreme Court Gun Cases, which argues that the high court has repeatedly acknowledged, in cases not directly involving guns, that the Second Amendment protects an individual right. In the 1990 case United States v. Verdugo-Urquidez, for example, Chief Justice William Rehnquist's majority opinion concluded that the phrase "the people"--which, Rehnquist noted, appears in the Second Amendment as well as the First, Fourth, Ninth, and 10th amendments--is "a term of art" that "refers to a class of persons who are part of a national community." Halbrook is also the author of That Every Man Be Armed: The Evolution of a Constitutional Right, which makes the case that the Framers understood the Second Amendment as guaranteeing an individual right to arms--a view that has attracted growing support among legal scholars in the last two decades.

But even Halbrook agrees that citing the Second Amendment in the 7th Circuit, which includes Illinois, would have been a mistake. "Picture the Bill of Rights with 'void where prohibited by law' stamped over the Second Amendment," he says. According to the view that still holds sway in most circuits, he says, "It's a weird, collective right, not a right 'of the people' like the amendment says." Only the U.S. Court of Appeals for the 5th Circuit, in the 1998 case U.S. v. Emerson, has explicitly rejected the collective-right interpretation of the Second Amendment and endorsed the individual-right view.

Comments

|10.7.09 @ 6:14PM|#

this man did the exact right thing and saved his family from a crazy crack seeking burgler