January 8, 2014
In 2010, the Supreme Court ruled in McDonald v. Chicago, making the Second Amendment “right to bear arms” first recognized two years earlier in District of Columbia v. Heller applicable to the states through the Fourteenth Amendment.
In making its McDonald ruling, the Court struck down an ordinance of the City of Chicago, Illinois, which effectively banned the possession of handguns in the home by requiring that all firearm owners to register the weapons but further prohibiting the registration of most handguns.
After its ordinance met its end in McDonald, Chicago enacted a new set of ordinances regulating firearms. After facing legal challenges to these new laws and amending them in September 2013, one ordinance remained challenged: the city’s ban on the sales and transfers of firearms within city limits.
Specifically, the city code in question states that, “no firearm may be sold, acquired or otherwise transferred within the city, except through inheritance of the firearm.”
The city was dealt another legal blow earlier this week, however, when a federal district court judge granted the summary judgment motion of the law’s challengers.
The ruling, Illinois Ass’n of Firearms Retailers v. City of Chicago, found that the ban on the sale and transfer of firearms within the city of Chicago ran afoul of the Second Amendment, and was thus unconstitutional.
The decision was made by Judge Edmond E. Chang – an Obama appointee. However, Chang’s ruling may not be as much a reflection of his own personal ideology as much as it is that of the Seventh Circuit Court of Appeals, whose precedent he is bound to follow.
After McDonald (but before this latest ruling), Chicago had yet another one of its gun regulations struck down. The case was the Seventh Circuit’s Ezell v. City of Chicago, and the city ordinance successfully challenged required one hour of firing range training as a prerequisite to lawful gun ownership, but simultaneously prohibited virtually all firing ranges from operating within the city.
Gun regulations suffered yet another defeat in December 2012’s Moore v. Madigan, in which the Seventh Circuit struck down an Illinois statute that prohibited a person from carrying a gun “ready to use” when not on the person’s own property, home, fixed place of business, or on the property of someone who has permitted the person to carry a ready-to-use gun.
Judge Chang found in his opinion that Ezell “distilled, from McDonald and Heller, a two-step inquiry,” to which Moore “added two key details.”
The first of these steps requires the government to establish that the challenged ordinance “regulates activity generally understood in 1791 [(when the Bill of Rights was ratified)] to be un protected by the Second Amendment.” If the government is successful, “the regulated activity is categorically unprotected, and the law is not subject to further Second Amendment review.”
Nonetheless, this is a fairly difficult step for the government to overcome, since there is a presumption that the regulated activity in question was generally understood to be protected by the Second Amendment. Thus, if the government fails to produce sufficient to overcome its burden – evidence that more likely than not simply doesn’t exist given the age of such records – then the court proceeds to the second step.
This second step requires the government to produce “sufficient evidence to justify the ordinance’s burden on Second Amendment rights.” And, “[t]he more people it affects or the heavier the burden on the core right, the stricter the scrutiny.”
If the government fails at this step, the law is unconstitutional.
Judge Chang stayed his ruling to allow the city to appeal, but considering the Seventh Circuit’s track record, it’s highly unlikely that the ruling will be overturned.
Could this case make it to the Supreme Court? If Chicago decides to take it that far, it’s certainly possible.
It’s uncertain, however, whether at least five of the nine justices will be as expansive of Second Amendment rights as the starkly libertarian Seventh Circuit. Both Heller and McDonald focused almost exclusively on the right to defend one’s home as “the core” of this right.
To say that these two rulings also stand for the proposition that the Second Amendment enshrines a right to not have to travel to the Chicago suburbs to purchase firearms – as Judge Chang’s ruling does – is making a substantial leap in logic that isn’t readily supported by any Supreme Court precedent.
Only time will tell for sure how the Supreme Court will rule any further on the Second Amendment.
In the meantime, Chicago looks to continue batting close to zero on its gun regulations.