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. STEVE RAY

    oh , i get it

    the law only benifits the liberials in this country (hate speech in the name of free speech, immigration in the name of more votes, and of course dirty money in washington and lets not mention taxes)

    however, the law is to also eliminate support for alternative ideas which do not fall lock step with a socially engineered agenda

    now i get it

    September 30, 2009 01:22 pm at 1:22 pm |
  2. phoenix86

    This will be an interesting decision. If the Supreme Court rules that the local jurisdictions are above federal law, then that decision opens everything up and states can then overturn a multitude of federal regulations.

    September 30, 2009 01:22 pm at 1:22 pm |
  3. santino

    The Bill of Rights grants nothing to the citizens of this nation. The document is the enumeration of specific restrictions applied to the federal goverment. The Second Amendment is a restriction applied to the feds, not local and state restrictions. However, all of the enumerated restrictions that apply to the federal governent are applied to the local and state governments through the 14th Amendment.

    September 30, 2009 01:23 pm at 1:23 pm |
  4. Peter

    Dear Supreme court apply the following formular and I'm sure you will come up with a viable decision.

    Republican Conservatism= Gun + Listening to the fox news+ shouting at tea partys- moral values. Work with that formular

    Liberalism= Who cares? + msnbc- courage to respond on time.

    Hint Work the problem simultaneously

    September 30, 2009 01:24 pm at 1:24 pm |
  5. Tony

    Why cant the NRA and gun manufactures come up with biorecognition type firearms so inner city kids cant steal and use rifles and pistols that dont belong to him. Why is there not one dollar of their R&D spent here. Answer: the gun black market makes just as much money as the regular market. They need gangs and violence to support their bottom line. They need wars. I support the 2nd ammendment 100% but somewhere we confused our rights with the desires of other people to make money.

    September 30, 2009 01:24 pm at 1:24 pm |
  6. USA OK

    Hmm. I wonder if Ken Burns' new series will end with a bunch of nut jobs shooting off their boomsticks in our national parks and using the bill of rights as their blast rag?

    September 30, 2009 01:25 pm at 1:25 pm |
  7. Rob in Detroit Mi.

    Didnt the Republicans say leave it to the States ?

    September 30, 2009 01:26 pm at 1:26 pm |
  8. JS007

    Oh yeah, give the crazies even more guns. The 2nd Amendment protects the right to have an organized and supervised militia; not a bunch of loons carrying guns into bars or to political rallies, or gangbangers shooting up schools. Has this country gone completely insane?

    September 30, 2009 01:26 pm at 1:26 pm |
  9. Daniel R. Peirce

    Good. I hope the court decides for Chicago as it did in DC. This bs of having some state or local laws being more restrictive than the federal gov. on one thing, but on another issue the fed being more restrictive is absurd. One or the other.

    September 30, 2009 01:28 pm at 1:28 pm |
  10. stormerF

    Of course the Federal Laws Trump,local and state laws,other wise the State could decide they are paying too much federal taxes for gasoline and just decide what they want to pay...All you nay sayers need to read the book "more guns less crime". You actually think making gun ownership more difficult will cut down on crime? England Banned guns that fired more than 2 shots,hand guns,rifles,and shotguns. Only single shot and double barrel shotguns were left. The Crime rate rose 350%,know why? The criminals/gangs do not obey laws.

    September 30, 2009 01:30 pm at 1:30 pm |
  11. Guapo

    More people die from idiot soccer parents driving their SUV's. I think we should instate mandatory SUV defensive driving classes and have an endorsement on your drivers license before you can operate an SUV. When is the last time you heard of a death caused by a responsibly licensed CCW holder?

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

    I find it overwhelmingly humerous how fired up (no pun intended) people get over this issue.

    Is the Right to Bear Arms guaranteed? Sure is. Yet talk about gay rights, woman's rights, minority rights, or something "liberal" in nature, and these same people put THEIR personal views over the Constitution.

    If we grant gun rights, why not all rights?

    Grow up, America.

    September 30, 2009 01:30 pm at 1:30 pm |
  13. Tom in Wisconsin

    "Americans have the right to own guns under the constitution. Period."

    And yet...you probably wonder why the cops don't do something about violent drug dealers engaging in drive-by shootings and ruining neighborhoods. If you really think it's a complete and fundamental right that cannot be infringed for any American under any circumstance...you have to agree that the most violent of thugs should be allowed to walk directly out of prison after serving time for murder, into a gun shop and walk out two minutes later with a loaded assault rifle. If you think that should happen, then the "Period" at the end of your sentence should really be an ellipsis instead.

    September 30, 2009 01:31 pm at 1:31 pm |
  14. Martin Sonopel

    Liberals believe that if we treat everyone else fairly, there is no need for self-protection because we won't have any enemies. Baloney! The way this country is deteriorating (look at Chicago, the homebed of liberalism), we need to fully armor our homes and persons. The Constitution guarantees that we can.

    September 30, 2009 01:32 pm at 1:32 pm |
  15. Terry from West Texas

    I have a God given right to defend myself, which is why I think the second amendment to the Constitution should be repealed. I have almost been killed three times by those who legally carried guns: a skeet shooter who was firing into the canyon where my wife and I were hiking, a fellow with a pistol who was trying to shoot a yucca on top of a hill (I was hiking on the other side of the hill), and a mother teaching her son to shoot a rifle (neither of them was looking downrange when he fired; they were both looking at his trigger finger).

    My 80 year old mother who lives on 40 acres of land in east Texas that her great grandfather homesteaded has quit buying no hunting signs because hunters shoot them to pieces within a few days. The also shoot the locks off her gates, so she doesn't lock them any more. Hunters have not killed anyone yet on her land, just a dog and a cow.

    God protect me from law-abiding Americans carrying a gun.

    September 30, 2009 01:33 pm at 1:33 pm |
  16. Laura in KS

    The world would be a better place if all firearms ceased to exist. If we want to fight wars (or each other) we should all just use swords–it's more civil that way and gives everybody a fighting chance at least.

    September 30, 2009 01:34 pm at 1:34 pm |
  17. Sharon, Illinois

    I don't care how many guns a person owns as long as they keep them to themselves. When do my rights come into play? I don't want to sit next to someone carrying a gun in a bar or restaurant unless it is a cop. I had a husband who would wave his guns around when he got angry or had too much too drink. Just because you pass the background check, doesn't mean you are stable enough to carry it everywhere.

    I'm not anti-gun but a gun isn't like a purse or wallet. Why would you need to carry a gun everywhere you go?

    September 30, 2009 01:34 pm at 1:34 pm |
  18. JO

    Mr. McDaniels, it is not a return to the wild west. That is an unsupported emotional reaction. In MN, the concealed carry laws were changed several years ago to make the application of the permit process universally applied, taking away the discretion of the local police. Anti-gunners decried the move as making it easier to get a concealed carry permit and it would create "a wild west" here in MN. Just the opposite has happened. In the several years of change there have been only severalof shootings by people w/ permits. One was an elderly gentleman that defended himself from a car-jacking, one was a well intended but foolishly applied act where he shot out the radiator of a car to prevent a drunk from driving home. The third was an incident where a permit holder went home, got his gun, and then shot a bouncer at a bar. MN is proof that background checks and solid processes work. No matter how many laws local gov'ts pass, the bad guys will get guns. I choose to be able to hunt, target practice, and yes, defend myself. The Constitution agrees with me.

    September 30, 2009 01:34 pm at 1:34 pm |
  19. Dan

    Actually the Bill or Rights was not interpreted as applying to the States' governments until the 14th amendment following the civil war, and even then its been limited, The constitution Guarantee's states' rights, with the Cnstitution being "The Supreme Law of the Land" in a restricted sense. That is when ther eis a clear intent to have Federal Law unsurp state law. For exapmle the Constitution guarantees free speah, but even there their are limits, not only the Fire in a Crowded theater, but also Obsenity, which is defined but local standards, and not nationally, there are other examples such as commercial speach such as advertising that may be controlled locally.

    This is not a comment pro or against local gun restrictions, just say that you can't make the kind of sweeping simplistic statements made above...its not black and white.

    September 30, 2009 01:39 pm at 1:39 pm |
  20. sensible Cape Coral Fl

    When the 2nd amendment was written there were only two types of guns, both requiring 18 single and separate operations to fire one bullet. That same amendment now applies to guns that can fire 500 bullets a minute. Time for an update perhaps?

    September 30, 2009 01:40 pm at 1:40 pm |
  21. deborah/kansas city

    Everyone always forgets about that "well controlled milita part". The constitution does not grant the freedom for each individual to own any type of gun they choose, but for states to have a "well controlled militia"

    September 30, 2009 01:41 pm at 1:41 pm |
  22. Mike

    It is interesting that the ONLY amendment that the conservatives seem to acknowledge is the second. There are groups in some of the rural parts of the "red" states who are actively training for the day they will have to rise up against the government. Does anybody wonder why people are reticent to arm these militia? The second amendment has long outlived its usefulness, and standing up to "tyranny" with force gets you killed these days, with the blessing of most Americans.

    September 30, 2009 01:41 pm at 1:41 pm |
  23. Jg

    Am I hearing the Pro-gun side correctly? Do they actually support Federal Government? Do they think the Feds are more competant than the states? Boo-Yah! Somebody call Max Baucas and tell him the Gun toting Public supports the Government and believes in the Public Option.

    September 30, 2009 01:41 pm at 1:41 pm |
  24. Annie, Atlanta

    "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 wording of the second amendment, ratified by the states. Looks like it gave us the right to form a militia to protect our freedom. Where does that mean we have the right to own guns (some semi-automatic) outside of "well regulated militia," "well regulated" being pretty self explanatory? We now have the military to serve this purpose. I never understood how this could have been so misconstrued.

    September 30, 2009 01:42 pm at 1:42 pm |
  25. DJ

    yeah....here we go again. here comes the neo-nut right wing circus bringing bazookas and machine guns to rallies

    September 30, 2009 01:42 pm at 1:42 pm |
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