Chicago Defies the Second Amendment

The trouble with the Windy City's handgun ban

Since the Supreme Court upheld the individual right to own guns last summer, one municipality after another with handgun bans has faced reality. Washington, D.C., which lost the case, changed its law. Morton Grove, Ill., repealed its ban. So did neighboring Wilmette. Likewise for Evanston. Last week, Winnetka followed suit.

Then there is Chicago, which is being sued for violating the Second Amendment but refuses to confront the possibility that what the Supreme Court said may apply on this side of the Appalachians.

When it comes to firearms, Chicago Mayor Richard Daley is no slave to rationality. "Does this lead to everyone having a gun in our society?" he demanded after the ruling came down. "Then why don't we do away with the court system and go back to the Old West, where you have a gun and I have a gun and we'll settle it in the streets?"

From listening to him, you might assume that the only places in North America that don't have firefights on a daily basis are cities that outlaw handguns. You might also assume that Chicago is an oasis of concord, rather than the site of 443 homicides last year.

So it's no surprise that Daley refuses to make the slightest change in the handgun ordinance, preferring to fight the lawsuits filed by the National Rifle Association. He is not impressed that 1) the law almost certainly violates the Constitution, which elected officials are supposed to uphold, and 2) it will cost taxpayers a lot of money to fight lawsuits the city is bound to lose.

The Chicago ban dates back to 1983—a time when no one had to worry about the forgotten Second Amendment. The ordinance prohibited the possession of all handguns (except those acquired before the law took effect).

It had no obvious benefits: Homicides climbed in the ensuing years and by 1992 were 41 percent higher than before. But the policy rested undisturbed until last summer, when the Supreme Court ruled that Washington's complete ban on handguns violated the individual right to use arms for self-defense in the home.

If that logic applies to the D.C. statute, it very likely applies to Chicago's law. The city, however, notes that the nation's capital is a federal enclave, and that the court did not say that states must respect the Second Amendment. That's true. The court's ruling also did not say that China is in Asia, which doesn't make it part of South America.

Once upon a time, the Bill of Rights restricted only what the federal government could do: States were free to restrict free speech, conduct unreasonable searches, and impose cruel and unusual punishments. But nowadays, the court says that because of the 14th Amendment, passed after the Civil War, states must respect virtually all the rights set out in the Constitution.

There is no reason to think the justices would exempt the Second Amendment from that rule. Ronald Rotunda, a constitutional scholar at Chapman University law school, thinks the Chicago ban has no more than a one in five chance of surviving court review.

That might be worth the gamble except for all the money the city is asking to be relieved of. The losing side would not only have to cover the costs of its own lawyers but also pay the winning attorneys. In the D.C. case, the amount has not been settled, but the lawyers who handled the suit asked the court for nearly $3.6 million, while Washington offered some $800,000. So if Daley insists on fighting all the way to the Supreme Court, the total tab will probably run into multiple millions.

The city says this is not necessarily money that can be saved, since even a revised ordinance could face a court challenge. But sensible changes might deter opponents from pursuing a lawsuit, and if not, at least the new version would stand a good chance of being upheld. Judging from its lawsuit, the NRA is aiming only at eliminating the city's total ban on handguns—which is what the Supreme Court will almost surely demand anyway.

Daley's recalcitrance may be viscerally satisfying to him and some others, but it doesn't change the choice the city faces. It can change the law now or it can change it later. Later will be a lot more expensive.

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  • ||

    I thought we *wanted* the lawsuits. If Chicago changes the law, then it will be at least nominally legal to own a handgun in Chicago. If Chicago fights the lawsuit all the way to the Supreme Court, then we have the individual 2nd Amendment right incorporated against the states under the 14th Amendment, which not only means handguns will be legal in Chicago but also clears the way for further lawsuits pushing to expand the 2A right to be filed against any law in the country, not just against Federal laws.

  • punk7||

    Cue Anchorman ... *works biceps with dumbells* "Check out these guns!"

  • Other Matt||

    I thought we *wanted* the lawsuits.

    I'm good with that,and huge damage awards against Chicago, make it really really sting hard.

  • ||

    I'm all for the 2nd Amendment, but I'm also for the Constitution being applied as written.

    So, pardon me for picking nits here, but I think Chicago might actually have a decent case.

    The 14th Amendment states:

    "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

    Last I checked Chicago is not a state, and I don't see how the 14th Amenedment as written could possibly apply to municipalities. (This was my argument in support for the SCOTUS decision in Kelo v. New London, though not their rationale, .)

    But if the District of Columbia v. Heller decision applies in DC, it must also apply in Chicago... right? I'm not so sure.

    Unlike Chicago, Washington DC falls exclusively under the legislative authority of Congress, and must therefore by bound by the 2nd Amendment. See Article 1, Section 8: "The Congress shall have power... To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States,..."

    I'd agree that the US Congress, the State of Illinois, and the District of Columbia cannot restrict an individual's right to bear arms, but I'm not convinced that the same is true for municipalities like Chicago.

    P.S. If anyone is aware of any SCOTUS decision that interprets the 14th Amendment as being applicable to non-state governments, I'd be love to hear about it (and would reverse my opinion on this).

  • ||

    So, Russ, by that logic, city cops don't have to advise suspects of their rights, per Miranda , or they're free to conduct sweeping searches and seizures without warrants.

    Ummm, I don't think so.

    I'm pretty sure that city and municipal governments are subdivisions of and creations of state governments and hence subject to same constitutional restrictions.

  • ||

    I'm good with that,and huge damage awards against Chicago, make it really really sting hard.

    It will sting the taxpayers, not the assholes who insist on litigating to maintain an unconstitutional statute.

    -jcr

  • Publilius Syrus||

    Last I checked Chicago is not a state, and I don't see how the 14th Amenedment as written could possibly apply to municipalities. (This was my argument in support for the SCOTUS decision in Kelo v. New London, though not their rationale,

    So if Cook County in Illinois decided to ban possession of all firearms of any kind, then you'd be okay with that? If every county in Illinois banned all firearms, you'd be okay with that? If every county in the United States banned all firearms, you'd be okay with that? How about if a county set up a censorship board which had to approve all newspaper articles before publication?

    If the Bill of Rights is to have any meaning, then it must be binding on all levels of government.

  • ||

    Our Gov has been violating the Second Amendment along with most of our other rights. When will the tax slaves of America talk a stand for them self's. You will not here it on the news but Oklahoma passed a law that makes concealed guns legal, crime went down 19% in that state. The whole thing is about Government control over us. If and when the people have had enough of there rights taken away from them and there is not many left to take, The gov does not want us to have guns to fight in a revolution against them. Homeland security has spent more of your money watching you than the terrorist. Guns are what gave us have our freedom in the first place, and guns just might give us our freedoms back.

  • DannyK||

    It would be smart for the city of Chicago to adjust its policies before a court challenge. Here in Seattle, the mayor is likewise pursuing policies that are almost guaranteed, IMHO, to end up being overturned by the court at massive expense, at a time when the city can't afford it.

  • ||

    It will sting the taxpayers, not the assholes who insist on litigating to maintain an unconstitutional statute.

    ...a majority of whom keep electing the officials who write the laws or refuse to remove them. Unfortunately there is no way to single out the taxpayers who support the law from those who oppose it. Ah the tyranny of the masses. If only there was a political ideology dedicated to the concept of holding elected officials to their oaths of office and letting individuals make and pay for their own choices.

  • ||

    He is not impressed that 1) the law almost certainly violates the Constitution, which elected officials are supposed to uphold, and 2) it will cost taxpayers a lot of money to fight lawsuits the city is bound to lose.

    Gee, I doubt that Daley has any politically connected lawyers working on this that the city can bill for lots and lots of hours. This couldn't be at least partially a kickback to his buddies, kinda like state lotteries.

  • ||

    Isaac Bartram:

    "So, Russ, by that logic, city cops don't have to advise suspects of their rights, per Miranda , or they're free to conduct sweeping searches and seizures without warrants."

    The 4th & 5th Amendments would definitely apply if the city cops are intending to get a criminal conviction under state law in a state court. In other cases, I'm not so sure.

    That doesn't mean that local law enforcement can't be subject to other limitations (e.g. a separate bill of rights, a local constitution, etc.) which offer similar protection against self-incrimination or unwarranted search and seizure. But I can't find the mechanism by which the 4th & 5th Amendments to the US Constitution apply directly to enforcement of local (sub-state) laws.

    "I'm pretty sure that city and municipal governments are subdivisions of and creations of state governments and hence subject to same constitutional restrictions."

    If that's the case, I'd agree with you, but only if the municipality's authority to govern is granted by the state. If the city government was not chartered by the state and it exists independently of state authority, I'm not sure it would necessarily be subject to the same Constitutional restrictions via the 14th Amendment.

    Publilius Syrus:

    In response to your hypotheticals: Since I still value individual liberty, I wouldn't be "okay" with any of the above, but I wouldn't consider them unconstitutional. More precisely, I wouldn't consider to be covered by the US Constitution. I'd lump them in same category as campus speech codes at non-state schools... a unjust restriction on freedom, but one where Constitutional protections don't apply.

    "If the Bill of Rights is to have any meaning, then it must be binding on all levels of government."

    And if the Constitution is going to limit the powers of the Federal government, it should limit the ability of the federal judiciary to oversee local legislatures.

    Serious question: Would you still be fine with SCOTUS overruling local legislation if it was medical marijuana at issue?

  • ||

    Here in Seattle, the mayor is likewise pursuing policies that are almost guaranteed, IMHO, to end up being overturned by the court at massive expense, at a time when the city can't afford it.

    Public Choice theory applies. The mayor of Seattle (who I am guessing is a liberal Democrat, given Seattle's demographics) will not have to pay these court costs out of his (her?) own pocket, other than the dollar or so his own personal taxes will increase to cover this spending. But, he will gain votes from the liberal constituents who elected him if he fights this. So, it is in his personal interest to uphold policies that will be eventually overturned at great expense to the taxpayers. This is the thought process at work: "This will personally cost me a buck or so, and will get me thousands of votes. A bargain!"

    Diffuse costs, concentrated benefits.

  • ||

    In the US, all local governments (counties, municipalities, etc.) are subdivisions of their respective state governments, and subject to all the same Constitutional restrictions. The same way DC, as a creation of Congress, is subject to the same constitutional restrictions as its creator.

  • ||

    "In the US, all local governments (counties, municipalities, etc.) are subdivisions of their respective state governments, and subject to all the same Constitutional restrictions."

    Thanks Andy... If you're certain that Chicago's mayor and council get their authority from the legislature of the State of Illinois, well... that answers that for me.

    In which case, please disregard my above argument, and continue with your regularly planned commentary and banter.

    You're certain, right?

  • ||

    Russ R -- The Chicago state legislature can pass laws binding on the city of Chicago, and are only limited by the federal and state constitutions as to the content of those laws.

    The city of Chicago can't pass any laws binding upon the state.

    And you have failed to provide a link to even one Supreme Court decision showing that municipalities, counties, and other local governments can ignore even one section of the Bill of Rights or other Constitutional provisions binding on the states.

    You're offering this novel theory, so it's incumbent upon you to provide some evidence that at least one judge somewhere has endorsed this view you're proferring, and had it hold up upon appeal.

  • ||

    Russ, according to the almighty Wikipedia (grain of salt?):

    In the United States (USA), the definition of cities (and town, villages, townships, etc.) is a matter of state laws and the definitions vary widely by state.



    If anyone can come up with a situation in which a city or town is not a creature of some superior (ie state/provincial or national) government I'd be interested to hear about it.

    Frankly I cannot imagine what you think the origin of a city's power to govern is, if it is not the State.

  • Ken_K||

    What does Mayor Daley care? He doesn't have to pay the cost of an extended legal battle.

  • Jon||

    The "one in five chance" of surviving a legal challenge is very optimistic. I highly doubt that we would have seen the same 5-4 split if the question concerned whether or not the Second applied to the States. The problem is that the die-hard states-rights people will have a difficult time squaring application of the 2nd Amendment to the states yet preserving states' rights. At least two of the justices on the bench are skeptical of the Substantive Due Process principle used to incorporate the Bill of Rights. Like it or not, applying the 2nd Amendment to the states is very different--practically and legally speaking--than applying it to the federal government.
    BTW: when a constitutional provision applies against the states it *absolutely* applies against municipal and county governments as well. That citizens can raise constitutional claims (e.g., excessive use of force under the 4th Amend.) against municiplaities is well-settled law.

  • jhn||

    Sometime state constitutions define what roles muni gov't can have, as in Colorado. So the state *legislature* is sometimes unable to override a county, for instance. But the state constitution is still a state law. In other states the powers and areas of authority for states and counties is defined by statute.

    One of the many, many, many S.Ct. decisions that notes that munis are merely "creatures of the state" is McMillian v. Monroe County,
    520 U.S. 781. (I just did a quick westlaw search for that phrase which is the term of art.) This is not even a controversial point.

    I think it's only the legal fiction of dual sovereignty (that states are not merely subdivisions of the US) that could make anyone feel otherwise. Even if it's not just a legal fiction, remember that states have the police power (the power to pass any law, without any need to an express grant of power) except as limited by the federal constitution.

  • Alan||

    RE: The problem is that the die-hard states-rights people will have a difficult time squaring application of the 2nd Amendment to the states yet preserving states' rights.

    The "die-hard states-rights people" are a bunch of moronic neo-confederates. They should be ridiculed and denounced whenever they wake up and poke their heads out of whatever hole they sleep in.

    And how about the absurdity of a "die-hard city rights" person? Why even pay attention to such inane "arm chair" constitutional lawyers?

    A mind is a terrible thing to waste. We see a lot of waste here.

  • ||

    As said by another:

    "Once upon a time? The Constitution applies only to the Federal government except where the States are specifically empowered or prohibited. The doctrine of incorporation is extra-constitutional and is nothing more than judicial activism. The 14th Amendment has absolutely nothing to do with the Bill of Rights. It was an Amendment to guarantee the newly freed slaves have the same rights as Americans.

    Don't like gun laws in the states? Change it through legislation rather than whining to the courts."

  • ||

    Brian,

    Interesting point.

    There are two extremes that I have heard:
    1- Is that the constitution applies only to federal government. And that states can pass the laws that they want, and that you as an American citizen can pick and chose the rights and laws they want by picking the state they want to live in.

    The other extreme:
    2- That the bill of rights applies to any group of people. Private companies and the like should follow the guidelines of the Bill of Rights. So that a group of 4 people and a group of 300 people should apply the constitution when dealing with someone that they have power over.

    I tend to like the latter better.

  • ||

    A shorter version of number 2 is:
    Every man is his own priest.
    Every man is his own king

    And the constitution is rules and guidelines we use to deal with eachother.

    We Americans don't have a boss. Not in government, not in our peer group, not in religion, and not at work.

  • ||

    I don't understand why citizens living in these jurisdictions don't start suing the elected officials personally for "misfeasance of office". It's one thing to sue the city and win a settlement, but the officials in charge have nothing to fear in that loss. The city pays any penalty and the politician vents that he did what he could, but was overridden by the court. When the politician imposes laws/ordinances that are clearly unconstitutional or illegal, that is a violation of his oath of office and he can and should be held personally responsible for it.

  • ||

    Kwais,

    Your extremes are also extraconstitutional. There is no advocating of "pick[ing] and choos[ing] the rights and laws they want." It's purely a matter of jurisdiction. Unless otherwise stated, the US Constitution applies only to the US Government. "Incorporation" is an invention of the courts and is not described anywhere within the US Constitution. The question you should be asking is whether or not Chicago laws are running contrary to the Illinois Constitution.

    The First Amendment doesn't apply when a news company chooses to edit its articles wording or not publish an article altogether. The Constitution applies solely to government, NOT to citizens and unless otherwise stated not to States.

  • ||

    Brian,

    You are on one of those extremes. If the constitution does not apply to cities or states, there will be different rights and laws and different jurisdictions. then you ARE chosing the pick and chose for rights and freedoms.

    You will chose to live in the city that has the official religion, or lack of religion of your chosing, and so forth.

  • ||

    Steve,

    I think part of your answer has to do with self interest. you get more money from suing the city.

  • jhn||

    People act like incorporation is some crazy judicial invention. But read the 14th Amendment:

    "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

    Now, for a rather dumb reason the Court decided to incorporate on the basis of the "due process" language, but even an armchair constitutional scholar might reasonably think that if the state can't violate the "privileges or immunities of citizens of the United States," that means it can't violate the bill of rights. It's not a necessary reading, but it's certainly a plausible one.

  • ||

    kwais,

    Reading exactly what the US Constitution states should not be considered "extreme". Previous Supreme Court justices (the first that comes to mind is Frankfurter) have also identified the US Constitution as applying strictly to the US Government unless otherwise said. If you want extreme, try on the view that the Bill of Rights itself does virtually nothing and is simply a set of guidelines. Think that's crazy? Ask yourself where in the US Constitution the authority is given to the federal government to do anything the Bill of Rights is supposed to prevent it from doing. Think on that.

    States were supposed to be mostly sovereign. Their constitutions were to be as critical to the State as the US Constitution is to the US Government. I'll ask the question that you won't: does the actions of Chicago violate Illinois State law or the Illinois State Constitution?

  • ||

    jhn,

    'Incorporation' IS an invention of the courts. I highly suggest searching for the discussion between Justices Hugo Black and Felix Frankenfurter. Prior to Gitlow v. New York, there was no instance where it was shown that the Bill of Rights superseded state law (in this case, about specific aspects of the 1st Amendment). The justices pointed to Chicago, Burlington & Quincy Railway Co. v. Chicago, where the 'due process' clause translated to the 5th Amendment's 'just compensation' (aka 'Takings') clause. Law was being based on court decisions instead of on actual statutes.

    The problem with the 'incorporation' concept is that it only works if judicial activism is applied. Like every constitutionalist, judicial activism is offensive to me; it's a work-around attempt at one-size-fits-all legislation that wouldn't be constitutional if attempted by the Congress, with virtually no exceptions.

  • ||

    Howdy,

    Getting back to Mayor Daley, he doesn't care about the cost of the lawsuits. He doesn't pay for it. His budget shortfall is costing the Chicago Citizens in layoffs, cutbacks in services, etc. Please, if you're interested in the 2ndAmendment, check www.illinoiscarry.com. We have 85 out of 105 counties in favor of the 2nd Amendment. We have a growing movement to get CCW permits for Illinois. 48 out of 50 can't be wrong. March 11, 2009 is IGOLD in Springfield. Last year, we had over 2500 people from all over the state there, talking to their elected Officals about CCW. Join us if you're a gun owner. Check out www.isra.org for more information. Thanks

  • ||

    Huh, a Chapman column and the regulars aren't here to pick it apart.

    *shrugs*

    Lets not forget, we are talking the fiefdom under Daley II. A tyrant of a city-state by every definition who will resist as long as he's in office.
    And he's in office for as long as he wants to be.
    Such is life in the windy city.

    Things are a little bit more fluid out on the streets though.
    A few years back, i was helping a friend w/ his car in a somewhat rough neighborhood. The gas station he limped to had double layer bulletproof glass and razor blades by the single next to the rolling papers.
    While waiting for the towtruck in my car we were 'observed' by some unmarked cops. They doubled back once and then one pulled up. My buddy explained, talked shop w/ them (he was teaching his rookie year down there) and they left us with these words of wisdom.
    "If ya got a gun ... put it in your lap"
    Thanks guys, thanks alot. They could at least have offered on of theirs.
    *shakes head*

  • ||

    Russ R,

    Your thesis is absurd. Federal law is supreme. State law trumps county, city, etc.

    To propose that the constitution does not apply if local political hacks (or a majority of citizens in a locality) simply do not approve of it (the constitution) means the constitution is just so much toilet paper.

    Now, I will admit that the constitution IS routinely ignored by all levels of government when it suits them, but that is why revolutions happen occasionally.

  • ||

    SECTION 22. RIGHT TO ARMS
    Subject only to the police power, the right of the
    individual citizen to keep and bear arms shall not be
    infringed.
    (Source: Illinois Constitution.)



    Brian's question: States were supposed to be mostly sovereign. Their constitutions were to be as critical to the State as the US Constitution is to the US Government. I'll ask the question that you won't: does the actions of Chicago violate Illinois State law or the Illinois State Constitution?


    It seems to me that Chicago's gun laws do indeed violate Illinois' state constitution; not that it matters much, though, because Chicago's gun laws obviously violate the US constitution.

  • ||

    I am not a lawyer, but the notion of "incorporation" strikes me as utterly absurd. What is the point of having a "supreme law" if local political hacks are allowed to simply pick and choose amongst the parts they don't like. How is a citizen to know what the law is, hence how is the citizen to know what actions are proscribed?

  • ||

    By the way, I grew up in Chicago and Picasolll's comment is pretty accurate.

  • ||

    Wayne,

    There we go. Challenge Chicago laws on the basis of the Illinois State Constitution, Article 1, Section 22. If Chicago's laws are found to be in conflict with the State's Constitution, they will be overturned. A lawsuit will get nowhere if it's challenged on behalf of the Second Amendment of the US Constitution.

    Wayne, do you have evidence to support your position? Could you point me to those statutes? Thanks.

  • ||

    Brian,

    Sure. DC v Heller.

    Heller seemed to get "somewhere" using 2A.

  • ||

    Could you point me to those statutes?

    Here you go: The second amendment to the US constitution.

  • ||

    Wayne,

    Either you're illustrating limited reading comprehension skills or you have no argument and are grasping. DC v Heller was strictly about whether or not certain lower FEDERAL laws of the District of Columbia, accountable directly to the US Constitution, violated the higher FEDERAL laws of the US Constitution. The Courts affirmed the lower court's decision. Heller et. al. challenged a federal law by pointing to higher federal law, which is not remotely the same as challenging, say, Chicago's laws by pointing to federal laws.

    You still have no demonstrated support for your position that the US Constitution applies wholly to the States. The 2nd Amendment does not read "provisions of this Amendment apply to all States and parties" or any similar language. Since the US Constitution applies by default to the US Government, with few specific and explicitly-mentioned exceptions and consistent with the language of the 10th Amendment, you don't seem to have much an argument to stand on by claiming the Second Amendment (or, the language thereof) supports your position.

  • ||

    I live not too far from the cities of Richmond and Portsmouth, VA, which while not Chicago, definitely have their dark sides. Non felons are free to carry firearms with a shall-issue permit system, or openly without a permit. Neither city has firearms crime like Chicago does. I am not saying that widespread ownership and carrying of weapons can make a city safe. Wait, I guess I am. Oops. What I'm trying to say is that arming a city's citizens will not turn the city into a free fire zone. Really. Oh, are Chicago denizens so different from Virginians that one can't be trusted with handguns, while the other can? Talk about being a second class citizen!

  • ||

    "The 2nd Amendment does not read "provisions of this Amendment apply to all States and parties" or any similar language."

    Neither do any of the other amendments. Are you arguing that the bill of rights is unenforceable in any of the individual states?

  • ||

    Dunno who read the article but it did mention that several Chicago burbs have changed or dropped their bans.
    Many of these are affluent areas which were passing smoking bans before the state got to it. Nanny government all the way. BUT their pockets aren't deep enough to fight the NRA or maybe some even have an ideological agreement. Or they see that Heller DOES support the 2nd as denoting an individual right (outside any state/local juristiction period).
    None have deep pockets like Daley II and the plain old mule like stubborn.

  • ||

    For a correct view of what are the "privileges and immunities" of citizens see what US Supreme Court Chief Justice Taney wrote in the majority of Dredd Scott...

    "For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police [60 U.S. 393, 417] regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."

    Read the full opinion for yourself before you spout off as to what the phrase "privileges and immunities" means - and it repeats this language time and again, providing many examples. Otherwise the poster's here are just blowing smoke out their ...

    As to whether the 14th incorporated the BOR against the states, it plainly did. See Harvard's Akhil Amar's books for the details, also Curtis' "No State Shall Abridge". The legal historical debate is settled; what is left is the archaic remnants of Jim Crow legislation and court opinions (like Cruikshank) which would never pass muster under modern 14th Amendment jurisprudence. I look forward to when Nordyke v. King or perhaps McDonald v. Chicago blows the stinking mass of unconstitutional gun enactments to hell.

  • ||

    "Neither do any of the other amendments. Are you arguing that the bill of rights is unenforceable in any of the individual states?"

    Off-topic; we're talking about enforcement now, and no, States do not have jurisdiction to enforce federal law. They may prosecute only with statutes of their own jurisdiction. What you seem to fail to realize is that the majority of States already have language very similar to the Bill of Rights, so it's not like if the Bill of Rights were to just disappear that all mayhem would ensue amidst the individual States.

    You still have not supported your position.

  • ||

    RKV,

    Are you suggesting that the language presented is clear-cut incorporation? Dredd Scott seemed pretty blatantly describing a "privileges and immunities" that has a lot more to do with State and local law than it does with the US Constitution's Bill of Rights.

    It baffles me why there's so much talk about the Second Amendment when very clearly Chicago is in violation of its own State's Constitution. This debate about incorporation shouldn't even be present.

  • ||

    Brian,

    From a hierarchical point of view, it might be reasonable to attack Chicago's gun laws using the Illinois constitution, after all the US constitution is superior to the state's constitution, hence the "next" ruling authority in Chicago's crime is the state, then the feds. Apparently though, it is Kosher to take it straight to the feds...

    Nobody said the state had "jurisdiction to enforce federal". Certainly though, the states must obey federal law, and when they don't then the feds (and citizens) must make them do so.

    You seem desparate to circumvent 2A by any means necessary. There is a lawful way to outlaw armed citizens: amend the US constitution to revoke 2A; until that happens though, you will just have to obey the law.

  • ||

    You still have no demonstrated support for your position that the US Constitution applies wholly to the States.

    Maybe this discussion would be easier if you would support your (apparent) position that the US constitution does NOT apply to the states. Frankly, I believe it does, and the 14th amendment seems to specifically say so.

  • Jon ||

    Wayne, that can be found in numerous Supreme Court cases, which embrace the so-called "selective incorporation" doctrine--e.g., Duncan v. Louisiana. The test is whether the right is fundamental to to our system of law.

    You will also notice that the 7th Amend.'s right to jury trial in civil cases has not been held to apply to the states, and the same applies to the grand jury requirement in the 5th. In fact, some lower federal courts and Supreme Court decisions have *expressly* held that the 2nd does NOT apply to the states. Granted, the S.C. cases are very old and rest on pre-incorporation law, but, as it stands, the 2nd does NOT apply. Any lawsuit against Chicago (or any other city) thus would be an uphill battle (though not impossible) because it would require the courts to reverse precedent. As I recall, a reading of Heller reveals almost as much since Scalia stated that he would NOT visit that issue (because it wasn't before the Court and anything said would have been dicta).

    We can all debate whether the 2nd is fundamental and whether it should apply to the states. Brian merely highlights the truism that it currently isn't under the law. Hopefully that will change but I do have my doubts for the reasons above.

  • ||

    Wayne,

    Jon is correct. It has been held, repeatedly, in both court and legislative commentary, from the days of the Bill of Rights' ratification up to and even post-14th Amendment that the Second Amendment, in addition to other elements of the US Constitution, do not apply to the States. The law is very clear on that matter. The "rights and privileges" referred to in the 14th Amendment has never been shown to mean "the Bill of Rights", though dicta within previous SC decisions seems to be popular in reading otherwise. For you to claim the contrary means you have to have something pretty clear-cut, and you don't. You've offered conjecture and that's it. Do you ever wonder why virtually every state has a Constitution that includes most of the US Constitution's enumerated rights under the Bill of Rights?

    Look, I don't disagree that it's morally bankrupt for a State to decide its citizenry ought not to keep and bear arms. I carry every day and I'm proud of my state for protecting my own right to keep and bear arms. It is NOT, however, unconstitutional for a state to "ban guns" or do any similar action on the grounds of an infringement on the Second Amendment of the US Constitution. Chicago's laws are in violation of the Illinois Constitution. That's it. California's laws, for example, are NOT, as there IS NO recognition of a citizen's right to keep and bear arms in that State (one reason I will never live there).

    As I've said, the Founders arranged the government as they did because they knew that it was easier for citizens to effect change at local and State levels than it would be to effect sweeping change at the national level. If an Illinois resident wants something done about Chicago's gun laws, they should organize, challenge the existing laws using State statutes, and vote for State legislatures who will better protect the citizens' right to keep and bear arms.

  • ||

    Brian and Jon,

    Thanks. I learned something, however incomprehensible it seems.

    How can the US constitution be inapplicable to the states?

    Why is it necessary to "incorporate" the bill of rights in the states? Why are the authorities so intent on denying the rights of citizens?

    Why are citizens of federal enclaves (DC, Guam, Puerto Rico, etc) ensured greater protections than other Americans?

  • ||

    Article. VI. - Debts, Supremacy, Oaths
    All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

    This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.



    At the very least, the Second Amendment would seem to bind every state judge and prevent him from enforcing any state or local law abridging the right to keep and bear.


    Lifted from another board, hence not my original thoughts, but it seems to make "incorporation" unnecessary...

  • Jon||

    Well, you have asked a lot of big questions. The Constitution IS applicable to the states (e.g., The Privileges and Immunities Clause, art. IV, sec. 2; restrictions against regulating interstate commerce; etc.).

    However, the Bill of Rights is prefaced with "CONGRESS shall make no law. . . ," so, on its face, the Bill of Rights only applies to the feds. This is why the Supremacy Clause cited would be inapplicable here because the 2nd Amend. doesn't (currently) apply against the states. So there would be no conflict between state law (or Chicago's) and federal. Of course, when a right has been incorporated, then the Supremacy Clause above applies (as you say) and favors federal law, constitution, treaty,etc. over an inconsistent state law.

    This is simply the nature of Federalism and the framers were primarily concerned with preserving rights against a strong, centralized gov't. While I might eat sh*t for saying this here, but part of me (only part, mind you!) is sympathetic to the idea that if certain citizens of certain states want to give up certain freedoms, then let them. But don't let them make that decision for the whole country. Of course, this can have nasty implications. . . . .

  • ||

    However, the Bill of Rights is prefaced with "CONGRESS shall make no law. . . ," so, on its face, the Bill of Rights only applies to the feds.

    Does'nt this line of reasoning lead one to conclude that the bill of rights (indeed no amendment) is not part of the constitution?

    An amendment has to amend something; in this case, the constitution. If that is the case, isn't the amended constitution now the "new and improved version" of the constitution? If so, then the supremacy clause applies. Even though the bill of rights begins with "Congress shall make no law..." isn't that proscription applicable to all congressional actions that are anti-constitutional, i.e. congress has no authority to override ANY part of the constitution. If congress has no authority to legislate in an anti-constitutional manner, then the preamble to the bill of rights is simply redundant and superfluous, hence the supremacy clause applies to the ENTIRE constitution, including the amendments.

  • ||

    Jon,

    Not to be argumentative, but the "CONGRESS shall make no law..." preface is part of the first amendment, and is not part of the second...

    This reading bolsters the argument that the supremacy clause applies to 2A, although it does seem to damage 1A. The damage is, however, removed by the "incorporation" of 1A.

  • ||

    However, the Bill of Rights is prefaced with "CONGRESS shall make no law. . . ," so, on its face, the Bill of Rights only applies to the feds...

    If SCOTUS and the legal community have concluded that the bill of rights only applies to the feds based on the italicized reasoning above, then I have to say my respect for their intellect and reading comprehension skills has fallen to a new low.

    The prefatory clause "CONGRESS shall make no law. . . ," is NOT part of the bill of rights; it IS part of the first amendment, and only the first amendment.

  • ||

    Chicago is waiting on exactly the right thing: a Supreme court packed by Obama.

    The second amendment has maybe two years left.

    Time to hit the streets? Oh wait, I forgot... libertarians (big or small "L" makes no difference) have no teeth.

  • ||

    Jon,

    My apologies if my last post about "reading comprehension skills" seemed insulting to you (or Brian) personally. I did not mean it that way.

    The more I look at "the law", the less respect I have for "precedent". What sort of tortured logic was applied to arrive at the conclusion that the entire bill of rights is conditioned on the "CONGRESS shall make no law. . . ," clause?

  • Jon||

    No offense taken. You are right to assume that not everything coming from the Bench makes sense or is well-reasoned.

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