Second Amendment Might Be Back on Its Way to Supreme Court

After last week's Seventh Circuit loss for the lawsuit against various Chicago-area gun possession restrictions, Alan Gura, the champion of last year's Heller case which first vindicated the Second Amendment at the Supreme Court, might be headed back to the site of his victory to try to settle the question of whether the Second Amendment right restricts state and local actions as well as federal ones.

ScotusBlog sums up:

Alan Gura…started a new challenge in the Supreme Court Tuesday.  It seeks to have the Second Amendment right enforced against state, county and city gun control laws. The petition in McDonald, et al., v. City of Chicago, can be downloaded here…..

The McDonald petition involves four Chicago residents, the Second Amendment Foundation and the Illinois State Rifle Association, all challenging a handgun ban in Chicago.  Their petition said the ban is identical to one struck down by the Supreme Court in its Second Amendment ruling last June in District of Columbia v. Heller (07-290).

The Heller decision, however, applied only to laws enacted by Congress or for the federal capital in Washington.  The Court expressly left open the question of whether individuals would have the same right against state and local government gun restrictions.

Arguing that the Second Amendment right is a "fundamental" one, the new petition said that means that the Fourteenth Amendment guarantees that such rights "may not be violated by any form of government throughout the United States.  Accordingly, Chicago's handgun ban must meet the same fate as that which befell the District of Columbia's former law….

The split of authority in lower courts "warrants speedy resolution, as it perpetuates the deprivation of fundamental rights among a large portion of the population," [Gura's petition] said. It would serve no purpose to let this conflict go on, the petition contended.

The petition can be read in full here. I wrote last month here at Reason Online about the legal history that led up to the circuit split on Second Amendment incorporation through the 14th Amendment.

My latest book, Gun Control on Trial, tells the full story of Gura's Heller victory.

Comments

[R C Dean]

Well, we already know Sotomayor doesn't believe that the Second Amendment applies to the states. Of course, that probably doesn't change the balance of voting on this one, since she replaces one of the Heller dissenters.

[I love Big Bro]

Hopefully the ruling will open the door for house by house search and seizure of "civilian" firearms.

"The Court expressly left open the question of whether individuals would have the same right against state and local government gun restrictions."

Seems pretty clear, the state owns you, you have limited privilages. As Carlin said, the only right you have is "right this way."

[LarryA]

Sure would be pleasant to see gun rights advancing the way they are if the trend lines for everything else didn't indicate we might need our firearms soon.

[JB]

It's lock and load time if the 2nd Amendment is not incorporated.

If the 2nd Amendment is not a fundamental right, then the US government does not exist.

[Elemenope]

It's lock and load time if the 2nd Amendment is not incorporated.

If the 2nd Amendment is not a fundamental right, then the US government does not exist.

Way to fuck it up for the rest of us.

[Joel E]

Remember: Average response time to a 911 call is 4 minutes.

Average response time of a 44 magnum is 1400 ft/sec.

[I love Big Bro]

JB tells us "It's lock and load time if the 2nd Amendment is not incorporated."

LMAO

When the nice police/military officer comes to your house and demands that you turn in your weapons, you will comply.

Sure, there will be a few Warsaw Ghettos, but the GPS info from the census will pretty much eliminate an "non-civilian" casualties.

[R C Dean]

That reminds me, I have a shipment of .308 overdue.

[squarooticus]

When the nice police/military officer comes to your house and demands that you turn in your weapons, you will comply.

With obvious cowardice, you might... but don't speak for all of us.

I agree with JB that if the 2nd isn't incorporated, the US is no longer a viable union: it will be clear that explicit founding principles have been firmly rejected despite the plain language of the contract that supposedly binds the states.

That said, if it comes to that, I wish them luck with their house-to-house search. I don't think there are enough cops in the world to accomplish that feat.

[LB]

The interesting thing is that Easterbrook and Posner were two of the judges on this case. Both extremely libertarian and upheld the ban based on federalism.

[Basement dweller]

Forgive my unfamiliarity with the United States' system of government, but what's the purpose of a Constitution that merely binds the federal government and not other levels?

What's the advantage of trading federal tyranny for state or local tyranny?

[Mike E.]

"...if it comes to that, I wish them luck with their house-to-house search. I don't think there are enough cops in the world to accomplish that feat."

And given the somewhat right-of-center orientation of most police and military, I question how many will refuse to take part in disarming their fellow citizens.

[Michael Ejercito]

That said, if it comes to that, I wish them luck with their house-to-house search. I don't think there are enough cops in the world to accomplish that feat.

Cops also need a huge infrastructure to support them. If that infrastructure were to cease functioning...

[Paul]

Cops also need a huge infrastructure to support them. If that infrastructure were to cease functioning...

We'd need some sort of stimulus package.

[Chris Howell]

When I lived in a large city you couldn't swing a dead cat without hitting a police officer (who would then arrest you for swinging a dead cat). In the city guns seem so dangerous and police are normally minutes away.

Now I live in a rural part of north central Florida. I live 25 miles from the nearest sheriffs office. Any 3 or 4 guys with baseball bats could pull up to my house in a pick-up and simply start taking all my possessions -- or worse. I would be powerless to stop them. Now with a gun, I can defend myself and my property. I'm not a NRA member or right wing in any way. I've been a life long democrat/liberal.

Many people who live in the city don't understand guns or why they are necessary. City people need to stop thinking only about themselves when they talk about gun control.

[Mikee]

In my opinion, these cases are made of pure genius because they are about the inherent human right of self defense (a non-enumerated right), which is made possible by the enforcement against the government of an enumerated right - to keep and bear arms.

The right to privacy, another non-enumerated right, justified striking down anti-condom laws and anti-abortion laws.

Because courts have decided that people have an inherent right to use condoms to protect themselves and others during acts of consensual sex (surely an optional activity for both parties), they cannot rule that people do not have an inherent right to use firearms to protect themselves and others during acts of non-consensual violent attack (surely a non-optional activity for the victim of attack).

I look forward to the oral arguments where someone will likely bring this up.

[R C Dean]

I look forward to the oral arguments where someone will likely bring this up.

Excellent argument, Mike. I will be surprised if anyone brings it up quite so cleanly and efficiently.

[Rob K]

I love the fact that Chicago is forced into the position of defending federalism, and the heinous Cruikshank and Slaughterhouse cases. This is gonna' be good.

[TrickyVic]

"""That said, if it comes to that, I wish them luck with their house-to-house search. I don't think there are enough cops in the world to accomplish that feat.""""

Your thinking is so 20th century. They won't need to go to every house, they will look up who has registered weapons and data-mine weapons/ammo purchase transactions, and review store security camera tapes to determine who to visit. But hey, if you've never registered your weapons, only paid cash, and wore a disguise when buying ammo, you stand a chance of being under the local S.W.A.T/BATF/DHS radar.

[Dom]

Reading some of the postings, I can't help remembering a line from one of your science-fiction authors who actually put a lot of real thinking in his book:
"Violence is the last refuge of incompetence" [Isaac Asimov]
If uou think that the aswering delay on 911 is too long, shouldn't you work, as a country and as a voting citizen to fix it, rather than buy a gun and take policing and justice into your own hands?

[Geena]

Chris H.: Excellent point, sir. My position is that I refuse to take seriously any gun-control advocate who won't put a sign on his/her front lawn which reads "This House Is Gun-Free".

Dom: Um, no. You can't "fix" a bureaucracy; the best you can do is work to protect yourself from its incompetence. Despite what the slogan on the side of their patrol cars might say, it is NOT the job of the police to protect you. Oh, and in whose hands do you think justice belongs?

[lastamerican]

Hey Dom, when someone is raping your wife or your kids. Make sure to let them know after it is over; daddy was on the phone, hoping the cops would put down the donuts long enough to save you. Get off your knees, you metro lib coward. I cant take justice into my hands. you deserve to have evil befall you and yours.

Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.