Chicago Gun Ban Heading to Supreme Court
September 7, 2005 - Photo by None/Getty Images North America
Yesterday, the Supreme Court announced that it would hear a controversial case arising out of the President’s home state; and no, it doesn’t have to do with Former Governor Rob Blagojevich. The case – McDonald v. Chicago, involves a Chicago gun ban that places restrictions on gun permits that advocates believe are contrary to the rights enumerated in the Bill of Rights under the 2nd Amendment. Under the city ordinance, it can take up to 3 months to receive a gun permit and the license is only good for 12 months, so essentially it is a revolving door application process. To make the matter worse, if at any point, a handgun permit expires, the gun must be destroyed or turned in to police.
This case has garnered much attention because the 2nd Amendment is one of those issues that divides our great country. This particular claim however, may divide some within the Republican ranks as well.
At the center of this controversy is a balancing of two Rights spelled out in the Bill of Rights – the 2nd Amendment and the 10th Amendment. The “Right to Bear Arms” is obviously at the center of this case, but the language of the 10th is likely to cause some deliberation for many Republicans if they truly think about this matter beyond the visceral level.
The 10th Amendment states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Why would this pose a problem in this case you ask? The problem arises directly from the 10th Amendment and how it is to be interpreted. If taken at face value as 2nd Amendment advocates will surely be pressing for on their claim, it simply states that if the Constitution does not expressly grant a power to the federal government, it belongs to the People or the states. There is no mention in the text of the document that grants the power in this area to the federal government, so it must have been included in those powers covered by the 10th Amendment.
So how does the 10th Amendment specifically relate to this case? I thought this was a city acting here? It was a city government, but the case involves the 10th Amendment because it is clearly a manifestation of a local government claiming their rights under the 10th Amendment. They are acting on the belief that it is a Reserved Power and is within their authority to regulate such conduct. This presents a major conflict of interest for conservatives who love to protect the 2nd Amendment but also champion the States’ Rights cause supported through the 10th Amendment.
So what does this really mean? We ignore the 10thAmendment in a million other cases as well right? The truth is that it may in fact not mean much of anything for just that reason. Through the Interstate Commerce Clause and a variety of other spending and appropriations measures, Congress has expanded the powers thought to be granted to the federal government. Additionally, after the Civil War, during the period referred to as Reconstruction, we passed the 14th Amendment which forced states to provide all protections and respect all rights expressed under the federal Constitution – The Incorporation Doctrine. This was a reaction to actions at the state and local levels directed at freed slaves in a nation trying to rebuild itself amidst dramatic racial tension. Essentially, the 14th Amendment told states that they could not ignore the Bill of Rights and was a major win for the federal government.
What does that mean to this case? It likely means that the Supreme Court will rule that the 2nd Amendment protects the Right to Bear Arms here. Does that mean that this ordinance will be flatly shot down? That is however, highly unlikely. The Supreme Court has ruled that cities and state governments can offer restrictions that are reasonably related to a ”significant government interest.” Obviously in big cities, such as Chicago or New York, the realities of proximity make gun use a different ball game than in rural areas. With that in mind, the Supreme Court will likely be ruling on a narrow issue rather than the whole interplay between the 2nd, 10th, & 14th Amendments. The focus will probably be targeted at the scope of this ordinance and the burden that it may place on a potential gun owner.
Advocates for overturning the gun ban are optimistic that the Court will rule in their favor as It ruled in such a manner in the only similar case to reach the Bench recently - Heller v. District of Columbia. This was a case that involved a similar gun ban for the DC area. It was purely a federal case because the District of Columbia is under federal control, so there were no 10th Amendment issues involved. Many believe that granting cert in this case is an attempt by the Roberts Court to clarify its position in Heller.
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