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 (the real one)

    One question for your 2nd amendment haters! Gun control controls what? Answer: Only those who are legally entitled to have one! Gun control does not apply to criminal, gang bangers, drug dealers, etc. Why? They get their weapons ILLEGALLY! When Nagen asked his police chief to pull the guns in New Orleans after Katrina, where did he go? Answer: ONLY to those who LEGALLY registered them and were LEGALLY able to own them! Not to the gangs, not to the drug dealers, not to the criminals! Think about it

    September 30, 2009 01:43 pm at 1:43 pm |
  2. Moderate Democrat

    Guns are the rights of the individual. Simple as that. You will have some retarded republican saying that democrats are against guns. The only truth in that is that we are against retards owning guns, which means we don't want republicans owning guns.

    September 30, 2009 01:43 pm at 1:43 pm |
  3. Truth-Bomb Thrower

    I'd love to see the statistic that says how many people were killed last year by people who LAWFULLY possess guns. Why do democrats think that the rest of us should be punished for the actions of the lowest scum in our society? (.....which happens to be their most loyal voting block.)

    THANK GOD FOR THE NRA!!!!

    September 30, 2009 01:43 pm at 1:43 pm |
  4. Illinois gun owner

    I feel that the constitution right to bear arms is an individual right, not specifically given to the state militias but to law abiding citizens. Further regulation of gun ownership will do nothing but impose on those already following the law. Making handgun ownership illegal in Chicago has done nothing to stop those who already knowingly break the law. In fact, the only thing the handgun ban in Chicago has done is to guarantee the criminals that the law abiding citizen they are about to victimize is in no way armed. I have legally purchased and carefully stored firearms and a state issued firearm owners identification card. Am I any more dangerous than my neighbors without firearms? Only to those committing violent crimes against myself or my family. Our founding fathers understood that the government may not always be there in a moment of crisis and through the second ammendent have made an allowance that the citizens have a right to defend themselves, their families, and their property.

    September 30, 2009 01:44 pm at 1:44 pm |
  5. Malcolm

    Your right to bear arms is never under treat until some wacko thinks theirs is and pushes their thoughts onto others. Peoples right to have arms though should be taken away if they pose a risk to others, ie criminals, terrorist and such. There should be areas though just like smoking where guns shouldn't be brought into, its just a matter of respect for peace and common thinking.

    September 30, 2009 01:45 pm at 1:45 pm |
  6. Jonathan

    That wild west arguement gets brought up a lot. Whenever a local is considering allowing concealed carry the antis all scream about how there will be blood in the streets, how it will turn into the OK Coral. But it never happens. Out of all of the peer reviewed studies on concealed carry, 2/3 show that crime was slightly reduced, and 1/3 show that there was no effect at all. Keep in mind these were peer reviewed, NOT just some NRA funded study.

    I am a collector of firearms myself, and a big advocate of gun rights. But that does not mean I'm a psycho. I think the most damage done to gun rights is done by the radical militia gun owners. Its a very self defeating hobby. Those idiots carrying weapons to political rallies are going to dig the grave of gun rights. I saw an interview with one of those idiots carrying an AR-15 to a rally, he said "In Arizona, we still have some rights", well if you keep using your weapons to intimidate people you disagree with you wont have them for long.

    September 30, 2009 01:45 pm at 1:45 pm |
  7. Tom Guerino

    This is more true than mean-spirited. The Repubs. better listen. The notion that some think that basic health care is not an American citizens right as we watch our economy tank and see more and more fall into dispair is foolish. Thank the forme Republican, Presidency, house and senate majorities for putting middle America in the drain pipe. As we get sick with no health coverage, we will know who the real villans are.

    September 30, 2009 01:47 pm at 1:47 pm |
  8. Steve (the real one)

    Great, now these nut jobs carrying loaded assault weapons on public streets
    -----------------------
    Hate to break it to you but, these weapons are already on the streets and in the hands of the criminal elements!

    September 30, 2009 01:47 pm at 1:47 pm |
  9. Johnny DC

    That's right, Liberal posting community – find a way to blame Conservatives for this.

    This is not a discussion about what guns are legal or who should be forbidden from carrying them or using them. This is a discussion about what happens when localities attempt to supercede the Bill of Rights.

    How can you Liberals bark repeatedly about slavery and women's rights (protected immortally in the Constitution via Constiutional Amendments), and then decide that the 2nd Amendment should be bypassable by local governments?

    Other posters make a great point - how about we bring back slavery in rural South Carolina, by way of a referendum vote? Or take away women's voting rights in Tennessee because there is a 53-47 breakdown of male:females?

    Liberals love to have their cake and eat it too. And my cake. And your cake. And their neighbors' cakes.

    September 30, 2009 01:47 pm at 1:47 pm |
  10. Need a solution

    Guns are okay....its the people that should be banned!!!!!!

    September 30, 2009 01:47 pm at 1:47 pm |
  11. VernisRobertson

    Yeah ! Let's make Dick Chaney right the guns laws LOL. . Bottom line is that their are to many assault rifles,Machine guns and other high powered weapons on our streets. First of all who are we getting German made machines guns on ours streets . The constitutions needs to be re-wrote , to modern laws, note something that was writtens hundreds of years ago . You band assault weapons , you stop the NRA and stop the Republican party all at once. It's like the NRA and the Republican love to see all the killings happening in the streets . But wait until the crime hits close to thier homes or district and see how fast something gets done about it .

    September 30, 2009 01:49 pm at 1:49 pm |
  12. Emmanuel Goldstein

    This is handing Obama one big old headache. The contortions that the administration will have to go through to avoid totally backtracking on its campaign position, and simultaneously tossing its left wing supporters under the bus, will be backbreaking. I see this as a no-win situation for the administration. Too bad it is coming before the Court now, and not in 2011.

    September 30, 2009 01:49 pm at 1:49 pm |
  13. johan yavari

    The sixth paragraph should be rewritten, as it is confusing and incorrect. From a legal perspective, the question is not whether there is an individual right to keep and bear arms – there is one, as Heller has already held. The question is against whom? The federal government, clearly (again, citing Heller). But against the state and local governments? This is the true question.

    Or more succinctly, will the Supreme Court hold that the second amendment is a fundamental right incorporated by the 14th Amendment's due process clause and thus require states to abide by it?

    The Court also has yet to create any judicial standards regarding the rights protected by the Second Amendment.

    September 30, 2009 01:50 pm at 1:50 pm |
  14. Frank

    All this relaxing of gun laws makes me scared and nervous. It is like we are becoming the wild west all over again. Before you know it, the conservatives are going to be pushing for the right to bear even stronger arms, like rocket launchers and maybe even army tanks with ammunition. This is craziness and it needs to be stopped. I know we have the right to bear arms, but the NRA and conservative crazies are taking it way over the top. We need to make our laws stronger, not weaker. IF an area decides it does not want an old west lifestyle, it should be able to pass a law preventing that. It is a safety issue, and people have the right to live in a safe haven without any of this gun craziness.

    September 30, 2009 01:51 pm at 1:51 pm |
  15. hoe

    A pistol is a flesh-drill, designed to kill people. There is no reason to own one. Americans are the most pants-wetting frightened people on earth even though they enjoy some of the lowest crime rates. It's just paranoia generated by the NRA to sell weapons and make hundreds of millions of dollars of blood money.

    September 30, 2009 01:52 pm at 1:52 pm |
  16. Deb

    For the life of me I do not understand people who so against gun control. You want a rifle, fine.. apply and register for it just like a car license. You want a hand gun for protection, again, .. fine apply and register. But why are these same people so against bans on things like AK47 ownership too? No civilian needs or should be allowed to own these type of military, mass murdering weapons. Anyone who sells, buys or is caught with this type of weapon should get immediate felony jail time. There simply is no arguement for these types of guns being in the hands of anyone not in the military or police forces. Just ask the mother of the little girl who was shot dead in the cross fire of a guy who had one of these weapons(another story on CNN today). The ban won't stop all violence but if a person can't spray 3 buildings in a drive by with dozens of shots per second maybe this little girl would still be alive.

    September 30, 2009 01:53 pm at 1:53 pm |
  17. Emmanuel Goldstein

    Seems simple enough -

    2nd Amendment is in the Bill of Rights
    14th Amendment says Bill of Rights applies to the States
    2nd Amendment should apply to the States.

    Simple.

    Or, perhaps we should get rid of incorporation altogether? How about it, Libs?

    September 30, 2009 01:54 pm at 1:54 pm |
  18. norm van

    A couple of things here:
    1. All of your "old west" town tamers first ordinance posted was 'No guns carried or discharged ine city limits'
    2. Most handgun owners see themselves as defeating the Bad Guys by shooting with Clint Eastwood Hollywood accuracy...and the Bad Guy missing of course. Good Luck with that one, Pal...
    3. The second amendment was to allow the slaveowners to form citizen militias for slave patrols and for instant call-up in case of slave inserruction. Hence "well regualted militia". Durning the time of the writing of the constition no government authority British or American had indicated they would limit gun ownership.
    4. I live in a peaceful town but there is no one in my aquaintances who, if I knew they were carrrying concealed, would make me feel better. Certainly not safer...

    September 30, 2009 01:54 pm at 1:54 pm |
  19. Nlss

    Read the actual words in the Constitution, please. Individuals were guaranteed the right to bear arms so that a militia could be called up if and when the need arose. At that time in this country's history, there was not a standing army and there were no arms maintained to give to the army when it was called up. Each man had to provide his own weapon.
    Times have changed dramatically in the intervening years. We have and army, air force, navy, marine corp, army reserve, and so forth. The need that existed when the Constitution was written no longer exists. The government supplies all of our fighting forces with weapons thereby relieving the members of the armed forces of the necessity of supplying their own weapons. Now, I know people love their guns. But the reason for having them, "A well regulated militia being necessary to the security of a free state...", no longer exists. You should also note, as well, that there is no guarantee to individuals that guns are necessary for anything other than a militia...there is nothing said about hunting, self-defense or any of numerous other reasons people give for "needing" guns. The fact is that we don't NEED guns.....people just WANT guns.

    September 30, 2009 01:56 pm at 1:56 pm |
  20. Hugo

    I am sure all those legal gun owners are responsible for the spike in gun related murders in our Cities. Perhaps if Government were to do their job and allow the courts to rid our society of the parasites then gun ownership would be moot. Murders are conducted by criminals, legal gun ownership does not make a criminal. Our streets are full of drug and gang related crime, a majority of the gang activity stems from the Hispanics here illegally or is associated to the drug trafficking coming in from Mexico. I keep hearing these politicians state that we are a Nation of Laws, well it would be nice if our Federal Government starting enforcing them, deport them NOW I'm tired of paying taxes for THEM as well as other lazy non-productive legal citizens of out Nation!

    September 30, 2009 01:56 pm at 1:56 pm |
  21. Fan of Common Sense

    Here's a little fact that most people don't (want to) understand about the 2nd amendment:

    Our forefathers did not write the it into the constitution just so that the American people could go hunting and kill varmints that wandered into their chicken coops. The 2nd amendment was put in the constitution so that the American people would have the means to OVERTHROW their government if it was to ever become too TYRRANICAL and CONTROLLING. In other words, a well-armed population was intended to function as an invisible FOURTH branch of government to keep the other three in line. We need LESS restrictions on firearms, not more.

    September 30, 2009 01:59 pm at 1:59 pm |
  22. Bubba

    Old Murt down at the bait shop thinks Obama done has stole his gun. His nephew says he probably left it on top of the pickup again and drove off. All these guys in the radio sayin' Obama's gonna get your guns has made him real nervous.

    September 30, 2009 02:01 pm at 2:01 pm |
  23. johan yavari

    Also, Scalia did not address "the assault rifle ban," as you say. That was Breyer, in his DISSENT.

    In understand the need to get the news out quickly, but please, at least have the facts correct and assign the task to someone actually competent in the subject matter.

    September 30, 2009 02:01 pm at 2:01 pm |
  24. David

    I take offecnse at some of the comments made here. I am a perfectly sane individual, rather liberal, but I have owned firearms for most of my life (I had a chipmunk gun whaen I was five). I'm pretty middle of the roadsane American, and I own guns. I enjoy tareget shooting, if anything. I don't feel a need to carry all the time though. Restriction is not the way though – outlaw guns and only the outlaws will have them.

    September 30, 2009 02:02 pm at 2:02 pm |
  25. Jane wants the truth

    The founders of our country wanted to ensure that we have the right to bear arms. So,are we shredding the constitution or are we going to stand up for what is our right as a citizen of the United States of America? We are still the United States of America... aren't we? We still have our constitution... don't we? This is insane.

    September 30, 2009 02:03 pm at 2:03 pm |
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