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. Island girl

    Is Amtrak still on board for allowing firearms to accompany their owners who ride the rails. I am curious to know how this process will play out.

    September 30, 2009 02:03 pm at 2:03 pm |
  2. Carl from MI

    If you own a gun... you should have to be a member of the National Guard per the Second Amendment to the Constitution.

    Then I can't wait for all of you gun owners to be hauled over to Afganistan to show off how proud you are to own guns and to protect your freedoms with your gun ownership!!

    What a proud day it would be for the NRA!!! The national militia doing what it's supposed to be doing... arming our citizens and sending them off to fight!! Think of how the NRA's enrollment will skyrocket!!

    September 30, 2009 02:04 pm at 2:04 pm |
  3. ISSUE YES

    Who decides what to uproar? There are statements like this made every day by all camps, yet the press makes this one into an "uproar." Garbage monkeys you journalists.

    September 30, 2009 02:04 pm at 2:04 pm |
  4. Kevin -- Evansville, Indiana

    I suppose trampling "State's Rights" aren't so important to these guys when it's about guns, and not merely human rights issues.

    September 30, 2009 02:04 pm at 2:04 pm |
  5. Jay T.

    Keep your filthy hands off our compensators, Obla-di-obla-dama!

    September 30, 2009 02:04 pm at 2:04 pm |
  6. Informed voter

    Most gun violence in this country is perpetrated on people who legally own guns, whether it is the accidental handling of their weapon, or the gun being used against them by an angry family member. The original intent of the second amendment had to do with militias and the Revolutionary War. Our forefathers never imagined people would want to or be able to own assault weapons. These fire arms are intended to kill as many PEOPLE as possible, not to hunt or to defend oneself from an intruder. States must be able to regulate these weapons of mass destruction.

    September 30, 2009 02:06 pm at 2:06 pm |
  7. CJK

    Do we have the right to own and bear arms? Of course, it is definitely part of the Constitution. I don't think it is unreasonable to have licensing restrictions and that SOME weapons should not be available to the general public but that's where it stops. There are thousands of laws dealing with the commission of a crime while either carrying a gun or using one to commit your special crime. Gun law restrictions will not and have never done anything to keep guns out of the hands of criminals. All of the restrictions have to be abided by by the honest law abiding citizens. It's as true as ever- Make guns criminal and only criminals will have guns.

    September 30, 2009 02:06 pm at 2:06 pm |
  8. Carl from MI

    Have you people even read the 2nd Amendment??? All you right-wing gun-toting nut jobs keep quoting it like it's a get-out-of-jail-free card.

    It says, "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"

    It means you get to own a gun when you belong to a well regulated militia. How many of you gun owners belong to a well regulated militia like the National Guard??? Not even 10%... what a disgrace!!!

    September 30, 2009 02:08 pm at 2:08 pm |
  9. Mitchell from MS

    Those who want gun control....what abunch of dolts you are! Do you really think criminals are just going to say " Oh there is a new law I better not get a gun and commit this crime"

    I tell you what take guns out of Northeastern states and let the rest of us have guns. Lets see how high the crime rate gets in those areas.

    Oh and Susan...NO conservative supports you!

    September 30, 2009 02:08 pm at 2:08 pm |
  10. Anthony

    Actually the Bill of Rights does not automatically apply to state and local governments. Only those that are necessary for 14th amendment Due Process apply . Look up the doctrine of incorporation.

    September 30, 2009 02:08 pm at 2:08 pm |
  11. Keith

    I don't get the oppositions argument here. Just because YOU don't agree with the right to bear arms, doesn't make everyone else some poorly educated moron. You can't pick and choose which rights you want and which rights you don't want others to have. That is the very reason we have the constitution. Thank goodness the fathers of this country studied history and learned enough from it to know that there will always be close minded, self proclaimed intellects who always think they know whats best for others.

    Some how a lot of you believe that this will turn everyone into "murderous" criminals and we will have more "killings". News flash, the guns involved in gang warfare, random murders, etc are illegal guns. Now if only there were a way to secure our borders from illegal guns, drugs, and aliens.......

    September 30, 2009 02:09 pm at 2:09 pm |
  12. Ralph Gentry

    When the left's and right's are afraid of eachother those in the middle quietly buy up all the ammunition. Face it, gun owners are far more peaceful than the average citizen and those on the left and right make them uneasy. There are 10 of millions of firearms in this country yet the murder rate by legally own firearms is much less than those murdered by drunk drivers. If you don't feel you can protect yourself with a firearm then maybe you shouldn't own one. However, there are millions of citizens who are familure with weapons and know how to use them responsibly. If the police can't protect you ( expect them to show up after the fact ) then it's up to you to protect yourself. No government nerd or do-gooder should have control over your life or mine.

    September 30, 2009 02:11 pm at 2:11 pm |
  13. Mathaniel

    I think there is a lot of contradiction in the right wing's stance. They keep saying for the federal government to stay out of things, but then they say that the local governments shouldn't be able to make laws that limit what the federal government states. In the "wild west", as someone mentioned, cities did have restrictions on whether a person could possess a firearm within the city limits and if you did not follow that law, you were removed or incarcerated. Yes, we have rights under the constitution, but there are controls in place meant to keep us from barreling over one another and some of those are the restrictions enacted under state and city/county jurisdiction. If one thinks otherwise, look at the state of Afghanistan. (and no I don't simply mean the current war that our soldiers are involved in) The distance from the central, singular government allows for chaos.

    September 30, 2009 02:16 pm at 2:16 pm |
  14. jmz

    Id love to ask these loonie gun control idiots what they plan on doing about crime? Oh thats right they plan on doing nothing because to them all criminals are innocent opressed victims. Bleeding heart loony libs always want to portray "evil" white people like me in the midwest or country shooting at a tin can with a big gun as wackos. while at the same time portray inner city gang banging thugs as noble opressed street warriors, drug dealers, robbers as innocent victims of society. News flash to all the commie libs out there. ITS NOT THE GUN THAT KILLS BUT THE PERSON!!! I challenge any one of you people to show me where a gun as killed someone WITHOUT ANY human intervention. We legal gun owners are not ignorant violent people looking for a return to the "old west" as YOU LIE and make us out to be. And considering that libs dont have the stones to punish criminals and want to reward them by making them victims, and the police have NO DUTY TO PROTECT YOU. I will keep my gun, get more and protect myself. and you.so all you spineless cowardly libs please sit back say thank you then shut up!! FREEDOM FOREVER!!! O'COMMIE NEVER!!! NO YOU CAN'T!!!

    September 30, 2009 02:17 pm at 2:17 pm |
  15. Independent in NYC

    Just what we need more guns and gun rights. For what the republicans call the greatest country in the world it sure is uncivilized.

    September 30, 2009 02:20 pm at 2:20 pm |
  16. Independent in NYC

    Bring it on. Just what we need more guns and gun rights. For what the republicans call the greatest country in the world it sure is uncivilized.

    September 30, 2009 02:20 pm at 2:20 pm |
  17. Ray

    We have the right to bear arms and believe me more people than ever thanks to Obama are excercising that right – never seen anthing like it. I have a conceal to carry in Texas and have properties in two surrounding states and carry in those states as well. States have reciprocal agreements. When I am 35 miles from a City on business or pleasure I have a gun on my person. This 2nd Amendment legal wrangling will only lead to more gun sales and ammo shortages.

    September 30, 2009 02:21 pm at 2:21 pm |
  18. JohnBoy

    The worst job in the world would be the person that has to come to my house and take my guns.

    Liberals lose again.

    September 30, 2009 02:24 pm at 2:24 pm |
  19. michelle

    this is ridiculous, look up gun crime who are the perpetrators and why?
    Answer those questions and solve those problems.
    When I was a medic 90% of vehicle accidents with a fatality had booze involved. It wasnt the cars fault.Why dont you have to get a license to buy alcohol?
    As far as nutjobs buying ammo, its not so much paranoia as a good investment, i cant wait for ammo legislation so we can sell our horde for triple the price or more.Thats what makes america great, morons , cause you are if your a democrat or republican.

    September 30, 2009 02:26 pm at 2:26 pm |
  20. Son of Dixie

    If local residents should decide guns laws, those same local residents should decided speech laws, search and siezure laws, and religious laws. In other words, if the second amendment does not apply to the cities and states, then neither does the rest of the bill of rights.

    September 30, 2009 02:27 pm at 2:27 pm |
  21. Art

    The choice of Christ (if one believes that is a true story) to heal a soldiers ear after a Disciple cut it off was indeed His choice. Christ never said, "throw away your sword"; in fact he directed that it be sheathed. The choice to carry the sword remained with the Disciples and continues to remain with men. ....if you are so inclined to follow the Christian religion....

    September 30, 2009 02:28 pm at 2:28 pm |
  22. Will in Carson City

    I guarantee that if we take the right to own guns away, not only will the black market sale of guns skyrocket, but crimes will as well. Criminals will have no reason to not go into a house because they know that a law-abiding citizen is not going to have a gun.

    Maybe we need to go back and take a look at Prohibition and see how well that worked.

    September 30, 2009 02:28 pm at 2:28 pm |
  23. jmz

    go ahead try and take our guns...how fast you think another civil war would start? lets see illegal guns are the ones that criminals use and do not register, so that in itself would prevent it from working. second according to the looney, and cowardly libs all us legal gun owners are evil rednecks. you know the ones that join the military, the police force, the ones who actually KNOW HOW TO HIT A TARGET. vs the gangbangers who fire 20,000 rounds at a target 3 feet from tem and only hit a 4 yr old riding her tricycle a block away. as for the libs they are too busy in starbucks convincing themselves how much better they are than everyone because they bought a soy latte and how they are not racist because they only hire mexicans to do their lawns and they actually spoke to a black person. so go ahead and try to take my gun...you think you got what it takes...hahahhaha. I DIDNT THINK SO!

    September 30, 2009 02:29 pm at 2:29 pm |
  24. Jesus healed the sick

    Question – why do people need AK 47's and bazookas?

    September 30, 2009 02:31 pm at 2:31 pm |
  25. Son of Dixie

    I'll make a deal with you gun grabbers.

    I will give in to the idea that local jurisdictions have the right to set gun laws. In return you will give in to the idea that local jurisdictions can decide whether to have prayer in schools, a nativity scene on the courthouse lawn, etc.....

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