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. ICARE

    We should all own guns and keep them in our house and use them only for hunting purposes.

    We should all come out and enjoy life and act CIVILIZED and have no guns or show no guns in public. Anyone who brings a gun in the public and shoot people should have their fingers cut off (like Middle East) and no one would want to recklessly use a gun :)

    Ah, the beatuty of common sense. China has 1 billion people. Can U imagine allowing 1 billion brain cells to own guns? It'd be hell.

    September 30, 2009 01:05 pm at 1:05 pm |
  2. di

    Have the courts lock up people that break the law and we would not need more gun control.

    September 30, 2009 01:06 pm at 1:06 pm |
  3. ICARE

    I'm fine with owning guns. I am fine with PUBLIC hanging and public CANING sessions to hold people responsible for handling guns.

    September 30, 2009 01:06 pm at 1:06 pm |
  4. tjones09

    Local governments should decide gun control laws. It is understandable when somebody takes a gun hunting, but not when a gun is taken to a highly populated area. Gun lobbyists keep pushing the envelope further and it will backfire on them because most sane Americans don't have guns and don't want them in public places where accidents can happen to innocent bystanders.

    September 30, 2009 01:07 pm at 1:07 pm |
  5. Fallout

    So who's forcing you to get one? I've got news for you: a truly determined person WILL get a gun no matter what laws are in place. But people who really should have one (if they choose) to protect themselves can't legally do it some places, and that's wrong. I wouldn't live in New York for that very fact. Let me get this right, they arrested a guy for having nunchucks in his HOUSE? Now that's nuts.

    September 30, 2009 01:08 pm at 1:08 pm |
  6. Kimono Kijiwa

    Jeremiah the Prophet, France has had secular law for generations. The French don't see themselves as crafting their laws to please a higher authority.

    Neither should we. People should decide for themselves which higher authority to follow. The only way I would support religious rule was if God directly, clearly, and unambiguously spoke to the American population.

    September 30, 2009 01:08 pm at 1:08 pm |
  7. Farrell in Houston

    We don't need AK47s or any other assault weapons on our streets and something has to be done. Our children are killing one another and adults don't seem to care. Our streets have become a war zone.

    September 30, 2009 01:08 pm at 1:08 pm |
  8. WayneVT

    So if a state, city, or other locality can't restrict an individual's right to own or carry a weapon...shouldn't this also apply to places of employment? Many companies have policies that restrict employees from carrying weapons in the workplace. Isn't this an infringement on my rights according to the Constitution?

    September 30, 2009 01:09 pm at 1:09 pm |
  9. kate

    I don't own any guns but thankfully, if I felt my family's safety was in question, then it is my legal right to purchase a gun in order to protect myself and my children.

    Please leave religion out if it. Even athesists have this same right!

    September 30, 2009 01:10 pm at 1:10 pm |
  10. Chris - Denver

    We should let people have all the guns they want and then ban bullets.

    September 30, 2009 01:10 pm at 1:10 pm |
  11. Mississippi Miss

    Clearly the states militia had the right to bear arms.

    State militia = right to bear arms.
    State militia = individual people
    individual people = right to bear arms.

    I think the states have a constitutional mandate to protect it's citizens,
    within the framework of individually armed people.

    State laws clearly bear the primary burden for citizen's rights and protections, while Federal law does also.

    What do you think?

    September 30, 2009 01:12 pm at 1:12 pm |
  12. wlou437

    The world is so different now than it was in the 18th century when monarchs ruled by forceand government was repressive. Guns owned by the average person were used primarily to hunt for meat for the family table. But since the young country had no standing army, they wanted to be able to quickly put together a militia to protect the community from the British, French or indians.
    Now there are so many guns in the hands of the "enemy" (drug dealers, burglers, thieves, etc.) that something needs to be done to remove the "unlicensed" guns from our streets.
    But the NRA and gun owners do not want ANY restrictions to their "right to bear arms."

    September 30, 2009 01:13 pm at 1:13 pm |
  13. pt

    I want all possible lethal weapons also banned where ever and when ever guns are banned. This includes railroad ties, rocks, vehicles, poisons, household items, clothing, etc. Ha! I thought not.

    September 30, 2009 01:14 pm at 1:14 pm |
  14. Justin

    The problem with the gun rights advocates line of thinking is this.... What constitutes the arms you have the right to bear??? If handguns are not allowed but you can still have as many rifles and shotguns as you can hoard, has your right to bear arms been infringed???? Does my right to bear arms mean I can have a fully automatic machine gun?? A rocket launcher?? What about hand grenades and C-4?

    September 30, 2009 01:15 pm at 1:15 pm |
  15. TLDSR

    The Republican Party is a disgrace and abomination. There is something putrid about these guys and gails. The parties of past decades did not make me want to shower after I hear or see them speak on issues. I think it started with the Newt Gingrich Crew

    September 30, 2009 01:15 pm at 1:15 pm |
  16. DownTownBrown

    Americans don't need more firearms – you shoot each other too much as it is. There are more firearms in the United States than people, and that's absurd. If people seriously think owning multiple assault rifles and pistols makes them safer, the US wouldn't be the most dangerous of the world's 36 richest countries.

    September 30, 2009 01:15 pm at 1:15 pm |
  17. Juan

    Right wing loons might be buying up the ammunition but they'll also be the one's defending themselves when this country gets so far away from what our forefathers designed it to be that she finally succombs to the pressures of socialism and implodes.

    September 30, 2009 01:16 pm at 1:16 pm |
  18. US Citizen

    I always found it interesting the conservatives who defend the right to keep and bear arms are criticized by liberals who are willing to take that right away yet at the same time are proponents of other rights and have gone so far as to use the term right when speaking of healthcare. Its just plain discriminatory and unfair.

    With that said the right to keep in bear arms should be regulated but not infringed.

    September 30, 2009 01:16 pm at 1:16 pm |
  19. James

    If the state or local authorities have the ability to restrict the Second Amendment, then they have the right to restrict our First Amendment rights as well.

    September 30, 2009 01:16 pm at 1:16 pm |
  20. more guns, that is what we need

    I don't pray enough, so I will pray now

    please bestow common sense on the court and limit guns

    we need less shootings, not more

    September 30, 2009 01:16 pm at 1:16 pm |
  21. Pete

    The Bill of Rights provides for free speech, but it is illegal to yell fire in a crowded theater, publish details of troop movements, or make libelous statements. Rights under the Constitution are not absolute.

    Does a local government have the right to deny convicted felons the right to own firearms? If someone shows up at a gun store and says he needs a shotgun to kill his wife, is the store owner obligated to sell one? Are you OK with people going to political rallies, airports, and sports stadiums with loaded assault rifles?

    Extremist organizations like the NRA have nothing to offer. Government has the obligation to place reasonable restrictions on gun ownership. People may disagree as to what is reasonable, but the idea that the Second Amendment allows unlimited gun ownership rights is simply wrong.

    September 30, 2009 01:17 pm at 1:17 pm |
  22. Counting the days until the Obamanation is GONE and America can prosper again

    If someone breaks into my house, and I'm home alone, how can I expect the police to be at my house before I'm killed by a criminal? Yelling and screaming and calling 911 and using pepper spray won't ensure that I stay alive – a gun will.

    September 30, 2009 01:17 pm at 1:17 pm |
  23. Neil Goslin

    If they don;t uphold it you will see a lot of Militias starting. I can gaurantee that.

    September 30, 2009 01:18 pm at 1:18 pm |
  24. John in Denver

    I think only the criminals should be allowed to have guns.

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

    i don't own a gun. i really don't have anything against someone who does but i do find it kind of disturbing to see people carrying guns to town hall meetings, on trains, in bars, resturants and even teachers being allowed to have guns in the classroom. it just seems all common sense has been lost in the gun rights debate.

    September 30, 2009 01:21 pm at 1:21 pm |
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