Wednesday, April 14, 2010

Chicago Criminal lawyer comments on 2nd Amendment rights and the City of Chicago's gun case

This Chicago Criminal lawyer spent another fun and fascinating evening at the Inn of Court. Tonight’s topic was near and dear to many of the lawyers and judges present. It was based on the pending 2nd Amendment gun case McDonald v. City of Chicago. She’s posted here on the case.

Tonight’s arguments included a focus on amicus curiae from Congressman Mike Quigley, in support of the City, as well as Congresswoman Kay Bailey Hutchinson TX and the Safari Club (on behalf of hunters).

Excerpt from Sen. Bailey Hutchinson’s brief in support of McDonald:
In District of Columbia v. Heller, 128 S. Ct. 2783 (2008), this Court recognized the individual right to keep and bear arms memorialized in the Second Amendment. This landmark decision ended years of debate over whether the right protected by the Second Amendment is individual or collective in nature. Having affirmed the original meaning of the right to keep and bear arms and definitively interpreted the Second Amendment to protect an individual right, this Court now should give full effect to that right by applying it to the States through the Fourteenth Amendment. Any other result would leave the rights of the citizens of the several States unprotected and undermine Congress’ ability to enforce and protect this vital right through the Fourteenth Amendment’s Enforcement Clause.

Excerpt from Representative Mike Quigley’s brief in support of the City:

The United States Constitution does not bar citizens from enacting gun control legislation at the local level, through their elected state and municipal representatives, that is reasonably necessary to protect their lives and well being from the risks of gun violence common to their localities. The Second Amendment was not understood either at time of the founding or following ratification of the Fourteenth Amendment as abrogating the traditional state police power to legislate for the safety of all persons, including through firearms regulations and prohibitions on categories of arms.

Over the last century, Congress has enacted legislation setting certain minimum standards for gun possession and gun commerce, including prohibitions on certain classes of weapons and on the sale and possession of firearms by, among others, felons, the mentally ill, and misdemeanant domestic violence offenders. These restrictions do not violate the Second Amendment. See District of Columbia v. Heller, 128 S. Ct. 2783, 2816-17 (2008) (“[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive
places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”); United States v. Hayes, 129 S. Ct. 1079, 1082 (2009) (upholding conviction under statute prohibiting possession of firearms by persons convicted of misdemeanor domestic violence offenses).

In addition to setting federal requirements for gun possession and gun commerce, Congress has repeatedly sought to aid states and municipalities in the enforcement of stricter regulations when the citizens of those localities determine that, in view of local conditions, additional restrictions are reasonably necessary for the public safety. Such state regulations, including prohibitions on specific categories of weapons, pose no threat to Congress’s war or militia powers.

Reversing the decision below would not only cast doubt upon the constitutionality of the decision of the citizens of Chicago that, within the confines of their city, the dangers of handguns outweigh any benefits that may be supposed to flow from their possession, but also could throw into question virtually every state and local firearm regulation. Given the inherent dangerousness of firearms, and the number of deaths from gun accidents, crimes, and suicides each year, such uncertainty in the ability of states and localities to respond to localized threats to public health and safety could be catastrophic. As a matter of sound policy and constitutional theory, the right of Chicago’s citizens to determine through their elected representatives what kinds of dangerous weapons may be in common use for lawful purposes within their city must be respected.
As you can see, there is a broad spectrum of different groups espousing support for one side or the other in this argument. Ultimately, the group tonight believes the U.S. Supreme Court will find in favor of McDonald.

I don’t believe there’s anything in the Constitution that precludes municipalities from some registration, e.g. licensing, fire arm instruction, mental health and felon prohibitions; etc.

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