Gun Fights in Chicago


The ABA Journal has an interesting write-up on the ongoing legal battles, post-Heller, over Chicago's gun laws. An excerpt:

Gun-rights groups long had eyed Chicago as the next stop should Heller go their way. And Chicago May­or Richard M. Daley didn't have to wait long to add another title to his resumé: defendant. Within a day of the justices' decision, the mayor and city found themselves and their gun ban in federal district court. Chicago faces two challenges, one led by the National Rifle Association and the other by the Second Amendment Foundation, an advocacy group based in Bellevue, Wash.

But even after Heller, does the Second Amendment right restrict state or local actions? That is, is it "incorporated" on the state's through the 14th Amendment? That is yet to be decided.

Today, nearly every amendment that addresses individual rights has been incorporated to the states, with the exceptions of the Fifth's indictment clause and the Seventh's right to a civil jury trial.

Gun proponents say the Second Amendment's freshly blessed individual right already enjoys fundamental status. "The Heller decision suggests that if a case arises, the 14th Amendment would apply," says Stephen J. Halbrook of Fairfax, Va., a veteran litigator for the NRA and one of the lawyers in the Chicago challenge. [Dallas litigator David J.] Schenck [author of a Heller amicus brief for 40 state firearms associations] says his clients also are exploring incorporation arguments under the Ninth and 10th amendments, which reserve for the people or the states, respectively, all rights that the Con­stitution does not expressly grant the federal government.

Beyond incorporation and with an ordinance so similar to the one struck down in Heller, the Chicago ban's future could be dim. [Chicago's lawyer Benna R.] Solomon acknowledges that the city hadn't fully considered substantive issues in the weeks immediately after the Supreme Court spoke. But she adds that the city has no plans to roll over. "I expect we will have more than one argument," she says.

The piece is a little behind the time toward the end on new developments in D.C. regarding gun laws, which were, reluctantly, liberalized back in mid-September.

And look for my forthcoming book on the Heller case and the legal and political battle over guns in America, Gun Control on Trial, and an excerpt from it in the December reason.