Media Advisory: Supreme Court Knocks Down Chicago Gun Ban

Published June 28, 2010

The United States Supreme Court ruled today that the City of Chicago’s gun ban ordinance is unconstitutional under the Second Amendment to the U.S. Constitution. The 5-4 opinion held the Second Amendment’s right to keep and bear arms applies to the states and their municipal subdivisions.

Four of the five justices held the ordinance unconstitutional under the second clause of the Fourteenth Amendment to the Constitution, the substantive portion of the Due Process clause. Justice Thomas, writing separately, argued the Chicago ordinance should have been banned under the first clause of the Fourteenth Amendment , which bars states from enacting laws that “abridge the privileges or immunities of citizens of the United States,” a narrower ground and one that avoids reviving substantive Due Process, widely criticized for expanding judicial activism. The case will now return to the Seventh Circuit Court of Appeals in Chicago for further proceedings.

In ruling the Chicago gun ban unconstitutional, the Court noted Chicago enacted the ordinance “to protect its residents ‘from the loss of property and injury or death from firearms.'” The majority then quoted statistics submitted in The Heartland Institute’s brief amicus curiae establishing that “the City’s handgun murder rate has actually increased since the ban was enacted,” from 9.65 in 1983 to 13.88 in 2008, both rates expressed per 100,000 population.

Maureen Martin, J.D., Heartland’s senior fellow for legal affairs and author of its amicus brief, lauds the outcome of the Court’s decision. But she has reservations, as does Clark Neily of the Institute for Justice, who was co-counsel in the 2008 Heller case, which held the Washington, DC gun ban unconstitutional. John Lott, Ph.D., who recently published a new edition of his landmark book More Guns, Less Crime, predicts Chicago will follow the lead of Washington, DC in seeking to gut the Court’s decision by continuing limits on gun ownership. David Kopel of the Independence Institute lauds the Court’s opinion.

In your coverage of this ruling, you may quote from these experts’ comments below or contact them directly for more information.

“Chicago residents gained an invaluable freedom through the Court’s ruling today in the McDonald case, which enables them to own handguns to defend themselves from criminals. Otis McDonald, the lead plaintiff, explained it best in an interview quoted in Heartland’s amicus brief: ‘I will not be pinned down in my house without anything to defend myself, while they [criminals] walk the streets. I will not be victimized by the law that tells me I cannot have a handgun in my own home, when I know there’s a right that’s out there that’s given to me.’ Congratulations, Otis.

You won’t be victimized any longer. [See also Heartland’s recent interview with McDonald.]

“But the Court should have found, as urged by counsel for McDonald and many legal experts, that the right to gun ownership is a privilege of national citizenship. By relying instead on a reinvigoration of substantive Due Process, the Court has opened the door to use of this discredited legal theory to impose more federal law on states in ways never intended by voters who approved the amendment.”

Maureen Martin
Senior Fellow for Legal Affairs
The Heartland Institute
[email protected]

“The Institute for Justice applauds Justice Thomas’s commitment to original understanding, which, as demonstrated by his painstaking review of the historical record, leads inexorably to a single conclusion: namely, that the Privileges or Immunities Clause of the Fourteenth Amendment was understood by those who ratified the Amendment as protecting the right to keep and bear arms from state infringement. The four-Justice plurality’s decision to reach the same result through substantive due process represents a missed opportunity to provide a more solid foundation for liberty in the text and history of the Fourteenth Amendment.”

Clark Neily
Senior Attorney, Institute for Justice
Office: (703) 682-9320
Cell: (202) 425-7499

“With another closely decided 5 to 4 decision, the Supreme Court ruled today that state governments are not able to ban most Americans from owning most types of handguns. The Court ruled that firearms are ‘essential for self-defense.’ Yet, just as with abortion, this is the first of what is likely to be a long string of court decisions. The decision is an important win for Americans who want the right to self-defense, but the decision also indicates how many questions still must be answered.

“When the Heller decision was handed down in 2008 striking down DC’s handgun ban and gunlock regulations, Chicago’s Mayor Richard M. Daley predicted disaster. He said that overturning the gun ban was ‘a very frightening decision’ and predicted more deaths along with Wild West-style shootouts and that people ‘are going to take a gun and they are going to end their lives in a family dispute.’ Washington’s Mayor Adrian Fenty similarly warned: ‘More handguns in the District of Columbia will only lead to more handgun violence.’

“Yet, Armageddon never arrived. DC’s murder rate has plummeted, falling by 25 percent in 2009 alone. This compares with a national drop of only 7 percent last year. And DC’s drop has continued this year. Indeed, the murder rate is as low as it was before 1967.

“The expected narrowness of the Court’s decision today had already encouraged Mayor Richard M. Daley and the city of Chicago to threaten last week to effectively undo the Supreme Court decision with new regulations. Daley promised to quickly adopt all the regulations that Washington, DC adopted in 2008 after its gun ban was struck down as well as some additional ones. To get a handgun permit in DC, applicants must pay fees over $550, make four trips to the police station, and take two different tests. Taking the Court’s 2008 decision that all handguns can’t be banned, DC went so far as to still ban all semi-automatic handguns that can hold a clip. Chicago plans on doing the same but adding a requirement that gun owners buy insurance that covers any incidents that might arise from the weapon.

“Hopefully, Chicago will not adopt such high fees and stiff regulations that only the wealthiest have the opportunity to defend themselves.”

John Lott, Jr., Ph.D.
Economist and Author
More Guns, Less Crime
[email protected]

Justice Alito’s opinion forcefully summarized three decades of scholarly research demonstrating beyond any doubt that protection of the self-defense rights of people of all races was a key purpose of the enactment of the Fourteenth Amendment. Enforcing the Fourteenth Amendment requirement that all state and local governments respect the constitutional right to keep and bear arms, the Supreme Court properly carried out its constitutional duty.

“Notably, the majority opinion does not expand the scope of permissible gun controls one iota beyond what was allowed by Heller. No longer can rogue local despots such as Richard Daley trample on the rights of American citizens guaranteed by our national Constitution.”

David B. Kopel
Research Director, Independence Institute
Adjunct Professor, Denver University Sturm
College of Law
[email protected]
(303) 279-6536