Chicago: The Second Amendment Doesn't Apply Here


As I discussed in a recent article, the federal 7th Circuit Court of Appeals held that the Second Amendment offers zero protection against the restrictive gun control laws currently in place in Chicago and Oak Park, Illinois. Plaintiff's attorney Alan Gura (who argued and won last year's landmark gun rights decision D.C. v. Heller) quickly filed an appeal (pdf) with the Supreme Court, asking them to hear the Chicago gun case. Now Chicago and Oak Park have filed their own petition (pdf) with the Court. Not surprisingly, they argue that the 2nd Amendment should not apply to state and local governments. They also picked up on the 7th Circuit's controversial argument that federalism would best be served by letting the states disregard the Second Amendment entirely. As conservative Chief Judge Frank Easterbrook wrote for the 7th Circuit, "Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon." The Chicago brief quotes that statement and adds a flourish of its own:

The States thus have, and should continue to have, the greatest flexibility to create and enforce firearms policy, including the ban of particular types of weapons that have proven to be highly dangerous in a particular location. Indeed, the power to regulate according to the needs of varying local conditions is a hallmark of federalism that is as much a part of the constitutional design as the individual rights provisions of the Bill of Rights…. Firearms regulation is a quintessential issue on which state and local governments can "serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."

As I previously argued, Gura's petition did a very nice job of refuting this dangerously biased notion of federalism. As he put it, "To claim that of all rights, the Second Amendment must yield to local majoritarian impulses is especially wrong considering that the rampant violation of the right to keep and bear arms was understood to be among the chief evils vitiated by adoption of the Fourteenth Amendment." Indeed, per the 14th Amendment, we don't let the states try "novel experiments" like establishing official religions or banning free speech. It's time for the Second Amendment to receive the same respect as the First.