September 30th, 2009
12:40 PM ET
5 years ago

Justices to decide potentially landmark gun rights cases

WASHINGTON (CNN) – Setting the stage for a dramatic battle over gun rights, the Supreme Court Wednesday accepted an appeal challenging the ability of state and local governments to enforce strict limits on handguns and other weapons.

The high court returned from its summer recess, meeting in private to consider thousands of pending appeals that have piled up the past three months. The Second Amendment case from Chicago was the most anticipated of the petitions, and oral arguments will be held sometime early next year. Nine other cases were also accepted for review.

At issue is whether the constitutional "right of the people to keep and bear arms" applies to local gun control ordinances, or only to federal restrictions. The basic question has remained unanswered for decades, and gives the conservative majority on the high court another chance to allow individuals expanded weapon ownership rights.

The appeal was filed by a community activist in Chicago who sought a handgun for protection from gangs.

The justices last year affirmed an individual right to possess handguns, tossing out restrictive laws in Washington, D.C.


The larger issue is one that has polarized judges, politicians and the public for decades: do the Second Amendment's 27 words bestow gun ownership as an individual right or as a collective one, aimed at the civic responsibilities of state militias and therefore subject, perhaps, to strict government regulation? And is that regulation limited to federal laws or can they be applied to local communities?

The amendment states: "A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

"The Supreme Court has told us one of two important things, and that is that there is an individual right to bear arms, now we are poised to find out whether that applies to state and local regulation," said Thomas Goldstein, a prominent Washington appellate attorney and co-founder of scotusblog.com. "That's really where the rubber hits the road because there are all kinds of state rules about when you can have and carry a gun."

The community activist in the Chicago case, Otis McDonald lives in a high-crime neighborhood in Chicago. He says his work helping improve his communutiy has subjected him to violent threats from drug dealers and other criminals. But his application for a handgun permit was denied in a city with perhaps the toughest private weapons restrictions in the nation.

He was among several citizens who appealed the ordinance. A three-judge federal appeals court in Chicago - composed of Republican appointees - ruled in June for the city, concluding the Constitution and past high court precedent was vague on state versus individual fundamental powers.

"Federalism is an older and more deeply rooted tradition than is the right to carry any particular kind of weapon," wrote Judge Frank Easterbrook, who has a conservative track record on that bench. Figuring out the limits of an individual right is "for the justices rather than the court of appeals," he said.

The justices have not yet taken action on a separate weapons case from New York.

In that case a Long Island man is appealing a 35-year-old state law banning a wide array of weapons, including chukka sticks - or nunchuks - composed of two sticks joined by chain or rope. They are staples of martial arts movies.

James Maloney has sought to keep them for practice, training and possible self-defense. He was arrested in 2000 for possession of a chukka stick in his home.

Maloney runs a one-man law firm and says he has long been an aficionado and historian of East Asian cultures.

The newest Supreme Court justice, Sonia Sotomayor, was part of a three-judge panel that rejected his lawsuit in January.

"It is settled law," the unsigned opinion concluded, "that the Second Amendment applies only to limitations the federal government seeks to impose on this right."

The panel also noted the state's interest in restricting ownership of these weapons, which the judges said had been used by muggers and street gangs, and can be considered "highly dangerous." Sotomayor has not indicated whether she will recuse herself from consideration of the high court appeal.

In a separate 2004 ruling (U.S. v. Sanchez Villar) that rejected a challenge to New York state's pistol licensing law, Sotomayor and her fellow appeals court judges concluded in a footnote, "the right to possess a gun is clearly not a fundamental right."

The Supreme Court in June 2008 rejected a sweeping handgun ban in the nation's capital, offering at least partial constitutional validation to citizens seeking the right to possess one of the most common types of firearms in their homes. On a 5-4 vote, the conservative majority of justices disagreed with arguments that the District of Columbia government had broad authority to enact what it called "reasonable" weapons restrictions in order to reduce violent crime. The city has since eased, but not eliminated, much of the previous restrictions.

"We hold that the district's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense," wrote Justice Antonin Scalia for the majority. "It is not the role of this court to pronounce the Second Amendment extinct."

Chicago and Washington are the only major U.S. cities that have enacted such sweeping firearm bans. Courts have generally upheld other cities' restrictions on semi-automatic weapons and sawed-off shotguns. The conservative high court majority has in recent years upheld a California ban on assault rifles, similar to a federal ban that expired in 2004.

But Scalia in the Washington case did not address the question now before the high court over state and local restrictions. And he cautioned the right to possess guns is not unlimited, referring to bans on gun ownership by the mentally ill and convicted felons, the assault rifle ban, and limitations on guns near schools.

"The right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose," he wrote.

Fourty-four state constitutions protect their residents' right to keep weapons, according to a brief filed by 32 state attorneys general in support of the individual weapons owners in the current appeals.

Some constitutional experts have noted the Bill of Rights had traditionally been applied by courts only to the federal government, not to local entities. It was not until the past half-century that the justices have viewed free speech, assembly, and the press - among other rights - as individual in nature, and fundamental to liberty, superseding in many cases the power of states.

There have been limits. The high court has repeatedly refused to extend to states the 5th Amendment requirement that persons can be charged with serious crimes only by "indictment of a grand jury."

A CNN/Opinion Research Corp. poll of adult Americans in June 2008 - the month the Washington ruling was issued - found 67-percent of those surveyed said they felt the Second Amendment gave individuals the right to own guns.

Thirty-percent said it only provided citizens the right to form a militia. The poll had a sampling error of plus or minus 3 percentage points.

The case is McDonald v. Chicago (08-1521).


Filed under: Supreme Court
soundoff (143 Responses)
  1. bush VICTIM

    rethuglicans will die defending the right to bear arms for all but oppose health care for all.

    September 30, 2009 02:32 pm at 2:32 pm |
  2. John

    So, the right to freedom of the press can be restricted by States? Hmmmmm...........

    September 30, 2009 02:33 pm at 2:33 pm |
  3. Enlightened Voter

    Watch all the right wing neo cons defend their right to own guns but deny health care for all. republicans are disgusting and should be banished from this planet.

    September 30, 2009 02:33 pm at 2:33 pm |
  4. james

    The majority of these comments are ignoring a basic principle of our governmental system. Allowing states to regulate guns is not denying the 2nd amendment. Nowhere in the 2nd amendment does it say that citizens can have guns whenever they want in an unregulated system. Local and state governments have the right to regulate gun laws. There is also a precedent called selective incorporation. The supreme court has ruled that many of the amendments including the 1st amendment can be incorporated into state laws because they are that important to the wellbeing of our country. The second amendment's supposed right to bear arms ( that is not what the amendment says) is not incorporated into state's laws. It is not as easy as saying either all amendments are incorporated or none are.states have the right and the duty to keep their citizens safe and regulate gun laws.

    September 30, 2009 02:35 pm at 2:35 pm |
  5. Sara

    Come on people, get real.

    American people are out of control!

    They miss use all the freedom they have!

    I guess it's the american way!

    Let's all go to Iran or just invite them all here!

    What's the difference?

    September 30, 2009 02:35 pm at 2:35 pm |
  6. Steve in Alabama

    Chicago's gun control laws have been very effective in curbing violence, right?

    Now, Chicago needs to pass 2×4 plank control laws to continue the fight against violence.

    September 30, 2009 02:37 pm at 2:37 pm |
  7. Mary

    FACE IT CRIME IS RISING and we HAVE to protect our loved ones!! People that buy guns for protection KNOW about gun safety!! From the looks of the video of gang violence in Chicago where that young innocent boy was KILLED – they didn't even use a gun to commit this horrific crime!! So the problems are NOT guns!!

    God Bless this innocent boys family and God Bless us all....

    September 30, 2009 02:44 pm at 2:44 pm |
  8. T'SAH from Virginia

    Take the GUNS off CHICAGO streets and everything would be fine!!! Bearing arms is a right but NOT everyone should bear arms!!! Also, everyone NOT living in Chicago is SANE either!!! How would you differentiate between the LOONEYS and NON-LOONEYS??? You CANNOT!!

    Therefore, STRICTER LAWS – require REGULAR background checks that include checking the CRAZY HOUSE too to be sure there are no CRAZY PEOPLE owning guns. Licenses – if not already processed in this way – should EXPIRE yearly and it would be up to the gun owner to REINSTATE license (gun person may have went LOONEY from the last LICENSE CHECK!!!)

    As you can tell – I do not believe in bearing ARMS or owning GUNS!!!! BUT, I can tolerate it if it is done right!!!

    September 30, 2009 02:45 pm at 2:45 pm |
  9. Anonymous

    If any of the judges is a protagonist of NRA, an Arizonan-esque justice can be expected w/ reasonable certainty.

    September 30, 2009 02:47 pm at 2:47 pm |
  10. Randy

    Keep in mind that these laws only effect the law abiding citizens. Crooks, gangs, and whoever else will carry them regardless of the laws.

    September 30, 2009 02:47 pm at 2:47 pm |
  11. Chris

    I'm a democrat. I really cannot understand the justification of a gun ban. Even if you interpret the second amendment to only protect the right of citizens to "form a militia," citizens would still need to be able to own guns. By every definition of the word 'militia' I can find (wikipedia.org, dicitionary.com, the Militia Act of 1903), a militia is an armed group of private citizens unaffiliated with the US military. This includes "every able-bodied man of at least 17 and under 45 years of age" as defined in the Militia act of 1903. So how can these people 'form a militia' if they can't possess guns? That makes no sense. You must have the right to own a gun in order to form a militia. That's why the text of the 2nd amendment reads, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms." The construction of the second subordinate clause redefines "A well regulated Militia" as "the right of the people to keep and bear arms"

    September 30, 2009 02:47 pm at 2:47 pm |
  12. Scott

    I'm considered pretty liberal, BUT this topic I am not. You have to understand that your law abiding citizens are not the ones running around shooting at people. Those few people that were at the presidential speech carrying a rifle bought their guns legally.

    Now if you want to say that they shouldn't be able to do that because there are other crazy people there that might grab the gun from that person and try to use it against someone, than that is another story. The problem is that you are not punishing these criminals and delinquent people enough to deter such actions.

    Good parenting and good upbringing helps with this to a point, but you have to understand that some people are just bad people and will cause harm even if a gun is not around.

    September 30, 2009 02:52 pm at 2:52 pm |
  13. George

    When will you birthers, deathers and gunners figure out that no one wants your guns. You are the target of republicans that have no real issues so they are using you all. They tell you Obama wants your guns. More lies, but you believe them anyway. If you republicans can't come up with any solutions for America, just go re-group until you can help. You lie about insurance, and you lie about guns. Lies are what
    led our nation during the Bush, Chenny administration. Lets tell some truth for a change, and quit inciting the gun owners. I am a dem and I have lots of guns. No one is taking them. Quit being used by a dying party!! Be your own person. Not a republican pawn!!

    September 30, 2009 02:52 pm at 2:52 pm |
  14. Dont blame me

    A interesting FACT is that those states that have concealed handgun laws have a lower crime rate than those states that don't.

    Interesting isn't it.

    September 30, 2009 02:52 pm at 2:52 pm |
  15. Beth

    I have a great idea. Why don't we just let every one over 18 have guns; in fact, why don't we encourage it. After all, the NRA insists that all gun carriers are law abiding citizens. Maybe we should lower the age to 16--the earlier the better. And let's dispense with any laws having to do with guns. Why do we need them anyway? Let's go back to the wild wild west and encourage the old "shoot outs at the OK corral". More gun deaths? Who cares? The NRA and right wing Republicans certainly don't.

    September 30, 2009 02:55 pm at 2:55 pm |
  16. ac

    Laws don't keep us safe. Good relationships with others keep us safe and the fact that most people are not intent on doing harm.

    However, harm is being done.

    Those who ignore the law and harm others should be punished. Those who follow the law and look to protect what is theirs should not be punished because of those who break the law.

    September 30, 2009 02:55 pm at 2:55 pm |
  17. Mark in CA

    The Constitution does allow us the right to own and bear arms. States also have the right to regulate and restrict the sale and ownership of guns which is also given them under the constitution regarding states rights. I strongly believe in government (local and federal) oversite for the sale of weapons because no one wants a criminal, mentaly ill or just plain wack job individual owning a weapon which is a danger to the american community as a whole. With that said there is a number of non-leathal ways people can defend themselves which should be explored and expoited more to the general community. Like another poster had stated there are a number of people who do not like guns but do believe in some sort of self defense. What about their rights? Every state has the right to put it to a vote and the NRA will just have to live with it.

    September 30, 2009 02:56 pm at 2:56 pm |
  18. Ray

    This is America.
    We have a Constitution.
    We have a right to bear arms.
    We now have a president who understands that there is a Constitution and that it means something to us. He doesn't want to undermine it like the previous president.

    What this all adds up to is that the Supreme Court who catered to the previous administration had better remember that it's there to interpret the Constitution and it states unequivocally that we (the American people) have a right to own guns.

    And as the bumper sticker so eloquently says - you can have my gun when you pry it from my cold, dead fingers.

    September 30, 2009 02:59 pm at 2:59 pm |
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