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. Susan

    Great, now these nut jobs carrying loaded assault weapons on public streets will have the Supreme Court okaying their murderous ways. As if we don't have enough killings already–we need more restrictions, not fewer! America is turning into the Wild West...thanks, conservatives, for your support.

    September 30, 2009 12:42 pm at 12:42 pm |
  2. Irene

    Local governments should decide gun control laws. It is understandable when somebody takes a gun hunting, but not understandable when a gun is taken to a presidential speech in a highly populated area. Gun lobbyists keep pushing the envelope further and it will backfire on them because most middle-of-the-road, sane Americans don't have guns and don't want them in public places where accidents and fits of rage can happen to innocent bystanders. Face it: most gun fanatics are prone to fits of rage and they are a scary lot.

    September 30, 2009 12:46 pm at 12:46 pm |
  3. Dutch/Bad Newz, VA

    Look at the right wing NRA loons buying up all the ammunition.

    September 30, 2009 12:46 pm at 12:46 pm |
  4. Some republican guy

    Oh no!!!!!! The wise Latina is going to take away my assault rifles!!!!! How will I defend my grandbabies from the evil narcisstic obamabots, the union thugs, the illegal aliens from planet ACORN and the socialist libtards when they come to drag us in front of the death panel? These people can't even run the post office and they want to say who can have guns and who can't???? The supreme court is a menace to humanity!!!! Have a nice day!

    September 30, 2009 12:47 pm at 12:47 pm |
  5. Tannim

    A lot of article blather to avoid one word: incorporation.

    It should apply to the RKBA as well as grand jury indictment and every other aspect of the Bill of Rights, since irrevocable individual rights trump the inferior and revocable powers of government (consent of the governed, remember?).

    Maybe in the process the Court will fix the bad parts of Heller and make "shall not be infringed" mean exactly what it says.

    September 30, 2009 12:51 pm at 12:51 pm |
  6. Jeremiah the Prophet

    Forget about the constitutionality of the subject, because America, like every other country on this Earth submits (like it or not) to a Higher Authority.

    That being said, everyone has a God (Muslim, Christian, Jewish, etc) given right to protect/defend him/herself and their family, loved ones, and property from would be attackers that seek to do them harm.

    I can understand the need for setting/applying age limits, requiring competency tests, and etc but any restrictive law/guideline deemed to be geared towards making it virtually impossible or a deterent for a law abiding citizen to lawfully own a gun and protect that which is theirs should be removed from the books.

    September 30, 2009 12:51 pm at 12:51 pm |
  7. Wheat

    Hey, it is a right spelled out in our constitution. It would be a tradgedy if they did not uphold our right, but then nothing would surprise me in the current atmosphere of overbearing government.

    September 30, 2009 12:52 pm at 12:52 pm |
  8. Mike Syracuse, NY

    So if the Second Amendment only applies to federal restrictions, then I guess the same is true of the rest of the Bill of Rights and states have the right to restrict freedom of speech or freedom of religion.

    September 30, 2009 12:54 pm at 12:54 pm |
  9. Bed time for Raygun

    The NRA is run by the gun manufacturers,they dont want lost sales,war is a good thing for them.

    September 30, 2009 12:55 pm at 12:55 pm |
  10. Rick McDaniel

    It is interesting, how we are returning to the "wild wild west", in terms of guns and violence.

    Is this what happens, when the religious right rears up its ugly head, as it has since the Bush administration? Is this about the violence that organized religion brings to issues of life?

    If so, then please.....take your religion elsewhere.

    September 30, 2009 12:55 pm at 12:55 pm |
  11. Gary

    I don't live in a city, but if I did I would want to have the right to own a gun to protect myself....background checks OK, no guns for psychiatric patients OK, no guns for convicted criminals OK, require gun training OK, require gun lock OK, but If CEOs and President Obama have armed security, if movie stars, musicians and athletes have armed security, I should be allowed to be armed as well. I'm just not rich enough to pay for armed security.

    September 30, 2009 12:56 pm at 12:56 pm |
  12. SantaRitaHunter

    Imagine a state law saying that everyone needed a permit in order to write a letter to the editor, justifying that claim on the premise that the First Amendment only applied to Federal attempts to restrict free speech.

    The anti-firearms crowd uses the same claims about the Bill of Rights that the Old South used to justify "states rights" with regard to slavery and, after that, Jim Crow laws.

    September 30, 2009 12:56 pm at 12:56 pm |
  13. demmie_in_oh

    even some dems need to agree that the basic rights in the constitution supersede all state and local laws. Right to bear arms is a federal right just like womans sufferage and abolition. If there were to find that the 2nd amendment doesnt apply to state and local laws, then the same would be true for all the other amendments which would allow state and local gov'ts to reinstate slavery, prohibition, and restrict voting to males. Right?

    September 30, 2009 12:56 pm at 12:56 pm |
  14. Mike in MN

    Americans have the right to own guns under the constitution. Period. Millions of Americans have owned guns since this nation was founded and they have never posed a threat to national security. The only threat would come is if this nation tried to take the constitutional right to bear arms away from a peacful people. Then I would truely fear the motives of my government.

    September 30, 2009 12:57 pm at 12:57 pm |
  15. thersa

    Count on the Supreme Court to make the wrong decision.

    September 30, 2009 12:59 pm at 12:59 pm |
  16. john from portland

    I love CNN

    September 30, 2009 12:59 pm at 12:59 pm |
  17. LacrosseMom

    Guns...... guns........ and more guns! Kids killing kids, adults killing each other!

    We are a violent society. Tragic.

    September 30, 2009 01:01 pm at 1:01 pm |
  18. rr

    The Bill of Rights can NOT be superceded or suspended by a state or municipality.

    A city can more ban the right to bear arms than it can ban free speech or the right to a jury.

    September 30, 2009 01:01 pm at 1:01 pm |
  19. Buster

    270,000,000 million guns and millions will buy more when rights are being taken away. I hope we end up with 400,000,000 guns to protect the Constitution from liberal NUT JOBS.

    September 30, 2009 01:01 pm at 1:01 pm |
  20. Tom in Delaware

    This is a no-brainer...something only a Liberal could twist into a pretzel for Gun Control.

    Another 5-4 decision...just like Ricci vs. DiStefano.

    September 30, 2009 01:01 pm at 1:01 pm |
  21. Dan, TX

    I wonder what wise Latina will do now... She has to please Barack Obama who has given her the job...

    September 30, 2009 01:02 pm at 1:02 pm |
  22. No Hillary = No Obama

    Just what this country needs: more guns on the streets, more thugs possessing guns, more nut cases killing people. The right to bear arms is outdated. There needs to be an amendment to the constitution to reflect the mayhem of the times that was not present 200 years ago. That's where the focus should be.

    September 30, 2009 01:03 pm at 1:03 pm |
  23. Anthony In Miami

    I don't think a state can remove the right to bear arms. However, arms in those days were hunting rifles and a pistol. I don't people have the right to carry M-16s and AK-47s which can kill many people in one squeeze of the trigger. The person right to bear arms is trampled on. If they want to buy a gun, buy one that fits the criteria of the state. People are so funny. They cry about states rights. The state defines it's law and then they turn to the Federal Courts to overturn a law that the state has now passed in defense of it's own people. WOW! Talk about make it fit what you want it to!

    September 30, 2009 01:03 pm at 1:03 pm |
  24. Charlie Rangel

    Maybe they should outlaw bats and clubs. What's the old saying? Guns don't kill people, people kill people? To outlaw an inanimate object only leads to the perpetrator finding another inanimate object to commit his crime with. Knives can kill people, outlaw those as well. Since an automobile can be used to commit murder, we should rid our streets of those too (and save the planet in the meantime).

    Maybe we should just outlaw idiots. That way we'd get a new Congress as soon as the court ruled on that one. Wait, I might lose my job then...hold it with the idiot ban.

    September 30, 2009 01:03 pm at 1:03 pm |
  25. John

    Interesting case.

    I basically believe in the right to own guns but I also think its reasonable to place some limits on where they can be carried.

    September 30, 2009 01:05 pm at 1:05 pm |
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