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 4 of 4)

With most circuits seeing the Second Amendment as no obstacle to gun control, advocates of gun rights have turned to other constitutional provisions. As Cyze, Wilmette's lawyer, noted in one of her briefs, their record is not a strong one. Appeals courts have rejected challenges to gun control based on the Fifth, Eighth, Ninth, 10th, and 14th amendments. No more effective have been challenges based on the 13th Amendment's prohibition of slavery or attempts to define gun laws as bills of attainder, ex post facto laws, or violations of the Commerce Clause.

That's not to say all non�Second Amendment claims are without merit. "One constitutional claim is the Ninth Amendment," which protects unenumerated rights, notes Cato Institute legal scholar Robert A. Levy. "Whether the Second Amendment pertains to a state or an individual is irrelevant if each of us has a Ninth Amendment right to defend ourselves." He concedes, however, that the Ninth Amendment has "never been given a whole lot of weight by the courts."

The Ninth Amendment case cited by Cyze is United States v. Broussard, a 1996 5th Circuit decision in a drug trafficking case. The court's Ninth Amendment finding was based on lack of argument, not a thorough analysis of the claim. The co-defendant Claude Merritt "does not point to any authority in support of his argument," the court said. "Nor does he advance any rationale to support his assertion that the right to possess weapons is among the rights reserved to citizens under the Ninth Amendment. Merritt relies solely on a law review article to support his contention."

Whatever possibilities these constitutional arguments hold, the best chance for a win may ultimately lie in the Second Amendment, says Arizona attorney David T. Hardy, a gun rights advocate. "Anything could be successful," he says, "but if you can't win on the Second Amendment with [a right to weapons] spelled out, you probably wouldn't win without it. I don't see where the Ninth Amendment or privacy would give you a tactical advantage."

The Next Battles

DeMar was not present on October 29, when Cook County Circuit Judge Thaddeus Machnik called Orman and Cyze to the front of his Skokie courtroom and handed each a copy of his 16-page decision dismissing DeMar's challenge to Wilmette's gun ban. Parts of Machnik's opinion seemed taken straight from Cyze's briefs: The right to privacy did not apply to handguns in the home. The ordinance was not arbitrary or capricious. And because DeMar could have used a long gun instead, the handgun ban was consistent with the ordinance allowing citizens to discharge firearms in self-defense. The opinion dismissed DeMar's counterclaim, but it did not rule on the initial charge.

That ruling never came. On December 22 both parties agreed to dismiss the case. With the new state law protecting defensive gun use on the books, the village recognized it couldn't win.

The outcome disappointed Orman. "I don't think our position was successful," he says. "Even though we won and effectively got everything we wanted, we didn't get it the right way." Although "the legislature took the first positive step," Orman wanted the courts to "recognize a constitutional right to protect the home." Wilmette's handgun ban remains in effect.

There are two other high-profile gun ban challenges still pending, both involving Washington, D.C., which has a law even stricter than Wilmette's. In addition to effectively banning handguns, the city requires that all long guns be kept unloaded and locked.

Parker v. District of Columbia, in which Cato's Robert Levy serves as co-counsel, seeks a ruling based solely on the Second Amendment. Seegars v. Ashcroft, backed by Stephen Halbrook and the National Rifle Association, names the U.S. Department of Justice as a defendant, since the DOJ prosecutes handgun possession cases in D.C., and complements (or complicates) the Second Amendment argument with claims based on the Fifth Amendment's guarantees of property and equal protection, the Civil Rights Act of 1866, and a D.C. law requiring that ordinances be "usual and reasonable."

Both cases lost in U.S. district court. U.S. District Judge Emmet G. Sullivan "indicated that he found our arguments credible, but he thought U.S. v. Miller bound him," Levy says of his case. U.S. District Judge Reggie B. Walton dismissed Halbrook's case for lack of standing: None of the plaintiffs had tried to register a handgun, been denied, and exhausted the appeals process. In February the U.S. Court of Appeals for the D.C. Circuit agreed with Walton, but as of this writing the Parker attorneys have yet to argue their appeal; at the city's request, the court delayed consideration of Parker until the resolution of Seegars.

As happened in the DeMar case, legislative action could make these challenges moot. The D.C. Personal Protection Act, which would allow handgun ownership, eliminate registration, and repeal storage laws in the nation's capital, passed the House of Representatives in late September and is awaiting action in the Senate. It is likely to be a close vote.

Levy doesn't support the bill. He says it "could be repealed by the next liberal Congress; it doesn't provide the kinds of permanent protection a court ruling can." In any case, he adds, "I don't think the D.C. Council would be stymied. There are all sorts of bureaucratic and administrative things that can be used to deny people the right to have a handgun." Regardless of how the bill fares, Levy hopes to push a viable case to the forefront as soon as possible. "You don't want a bank robber or a crackhead up there as a poster boy for the Second Amendment," he says.

David Hardy favors waiting, predicting a 10-year battle. He hopes the Bush administration, which has endorsed the individual-right interpretation of the Second Amendment, will appoint gun-friendly justices to the Supreme Court. "Now we've got three votes for sure, and the rest are in the other camp," he says. "I'd like to see four or five in our back pocket, with a really good test case. Once you have a ruling you're only halfway through, because the lower courts will resist. It will be a battle to get the lower courts in line, and I doubt it would be a quick fight."�

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GUNS « Upset Patterns links to this page. Here’s an excerpt:

…much non-existent. In fact, I can’t think of anyone from my childhood who owned a gun. We lived in a safe neighborhood where self-protection wasn’t an immediate concern (though this incident in Wilmette did get national attention) and not many hunters were around. As a result, I grew up kind of thinking guns were creepy – and still kind of do. Guns are for redneck Southerners,…

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