Chicago will continue to enforce gun ban

[Texian]

Three prior Supreme Court decisions have found that the Second Amendment does not apply to states and municipalities.

I can't believe my eyes! All of my life I have been ignorant of the fact that the bill of rights only applies to residents of DC. Gee, I guess that the other nine don't provide any protection to me either. The city's legal beagle didn't bother to cite the previous SCOTUS decisions that she is referring to.

http://www.suntimes.com/news/metro/1074 ... 25.article

Chicago continues to enforce gun ban
Says court ruling doesn't apply here

July 25, 2008

BY MARK J. KONKOL Staff Reporter

Chicago Police will continue to enforce the city's handgun ban and firearm registration laws while lawyers fight the pro-gun lobby in federal court.

The National Rifle Association and the Illinois State Rifle Association filed federal lawsuits to shoot down Chicago's gun laws after the U.S. Supreme Court voided the District of Columbia's handgun ban last month.

City Corporation Counsel Mara Georges told a City Council committee Thursday that she's prepared to fight those lawsuits all the way to the Supreme Court.

"Chicago's gun ordinance was not invalidated by the . . . decision. Three prior Supreme Court decisions have found that the Second Amendment does not apply to states and municipalities," Georges said. "The decision did not change that case law."

Georges said she's confident that the U.S. District Court will dismiss the gun lobby lawsuit challenging Chicago's existing laws.

"What would happen for it to apply to Chicago is that the district court would have to fail to follow well-established Supreme Court precedent . . . and say that we should be treated like a federal jurisdiction," she said. "That's the difference here. D.C. was considered a federal jurisdiction. . . . We are not."

The views expressed in these blog posts are those of the author and not of the Chicago Sun-Times.

[Excaliber]

Three prior Supreme Court decisions have found that the Second Amendment does not apply to states and municipalities.

In an article entitled "Freedom Unbound" in the August issue of the NRA's America's First Freedom Magazine, author Dave Kopel details what the Heller decision does and does not mean. He discusses its applicability to states and munipalities on page 34 (at the top of the second column).

The short version is that Heller did not answer the question of whether or not the 2nd amendment is enforceable against states and municipalities because the Supreme Court has not incorporated it into the Fourteenth Amendment, as it has done with other amendments like the first and the fourth. Without this step, the decision is enforceable only against the federal government.

The fight for 2nd amendment rights isn't over. It's only beginning.

[The Annoyed Man]

I'm not a constitutional scholar, but the Constitution most definitely provides for an individual right in the 2nd Amendment, and Heller affirms that. The 14th Amendment makes the 2nd federally enforceable. The 10th states that those powers not delegated to the Federal government belong to the states. As I see it, the Fed is empowered in the 14th with enforcing/protecting the 2nd, and the states are not given that power because it is already delegated to the Fed.

...at least, that's my interpretation.

[LedJedi]

That's it.... I give the 2nd amendment Lure, Trample and Rampage 6.

2nd amendment is attacking.

[Texian]

There is a pretty good discussion going on about this on another forum.

http://www.thehighroad.org/showthread.p ... ht=Chicago

[Pinkycatcher]

I can't believe a liberal city is trying to argue state's rights.....It's like Jewish people arguing against Isreal (No offense to any Jewish people, just the only thing I could come up with)

[bdickens]

This is great. I hope they enforce their handgun ban with increased vigor, too.

[Liko81]

I'm not a constitutional scholar, but the Constitution most definitely provides for an individual right in the 2nd Amendment, and Heller affirms that. The 14th Amendment makes the 2nd federally enforceable. The 10th states that those powers not delegated to the Federal government belong to the states. As I see it, the Fed is empowered in the 14th with enforcing/protecting the 2nd, and the states are not given that power because it is already delegated to the Fed.

...at least, that's my interpretation.

Not really. The 2nd Amendment, and indeed the entire BoR, was a check on Federal power to appease anti-federalists. The States could do as they pleased. However, by Reconstruction, the States had proven that they were more the source of oppression than the Federal government, and thus along with the 13th Amendment banning slavery, the 14th Amendment was passed to define that all Americans (which now included freed Blacks) were American citizens first and Virginians, Tennesseeans, Floridians, New Yorkers, Texans, etc second. The Privileges and Immunities clause of the 14th Amendment was written to incorporate the individual protections of the Constitution and its Amendments to the States, by defining all Americans as entitled to the protections of the Constitution against tyranny from ANY source. This (the authors hoped) would avoid a clever sidestep of the 13th Amendment by the States who would simply say the Amendments only limited the Feds. Note that through none of this did the Feds have any power to "enforce" any of this except on itself. If an infringement occurred, relief happened through the courts, not through greater Federal interference.

However, the Slaughterhouse Cases, a series of lawsuits before the SCOTUS, effectively read the original interpretation of the 14A out of existence, by stating that it was in fact the Constitution's "Privileges and Immunities" clause in Art. IV Sec 2 that applied to the States, while saying that the "Privileges or Immunities" clause of the 14A applied only to the Feds. However, judicial precedent since long before the Civil War held that the Constitution's clause in fact had nothing to do with how the States treated their citizens; only with how a State could deal with a citizen in another State. It was a very political, very Deep South-influenced ruling that in effect said the States could keep on keepin' on.

The majority of Amendment rights have instead been incorporated under the next clause of the 14A, Due Process. It specifically states that no State shall deprive a person of life, liberty or property without due process. That pretty much immediately incorporated the Fourth Amendment all by itself, and THAT interpretation was and has been upheld. It was then used to incorporate 5th, 6th 7th and 8th Amendment protections (not necessarily in that order), and in specifying that a State could not deprive a person of liberty without due process, it was used to incorporate the First Amendment. So, of the eight Amendments dealing with rights of a person, only the Second and Third have not been incorporated to the States in a manner backed by SCOTUS. The Third Amendment has been practically dormant since its inception; neither the States nor the Feds have attempted to force landowners to house troops (LEOs can get warrants to enter into and set up camp in neighboring houses for surveillance; this practice has not AFAIK been challenged in court under 3rd Amendment lines. The three cases in which SCOTUS said that the Second Amendment does not apply to the States are Dred Scott, Cruikshank and Presser. All of these were decided before the 14A was ratified, and the question has not been considered since then.

Now, the Feds currently enforce such decisions under their Constitutional power to enforce Legislative and Judicial edict. The States can do this as well, but generally state LEOs do not get involved in municipalities unless it's a big deal; if the city's screwing up, the Feds usually find some excuse under interstate commerce or other Federal jurisdiction to intervene before the State decides to do so.

[Excaliber]

Thanks to Liko81 for the legally and historically solid reality check.

Common sense would suggest that that the 2nd amendment should be incorporated into the 14th Amendment like the other individual rights in a way that's enforceable against a contrary state, but that hasn't happened yet.

Heller is a huge step in the right direction because it finally clarified that the second amendment is an individual right, but it's a long way from the end of the journey.

[57Coastie]

...It was then used to incorporate 5th, 6th 7th and 8th Amendment protections (not necessarily in that order), and in specifying that a State could not deprive a person of liberty without due process, it was used to incorporate the First Amendment. So, of the eight Amendments dealing with rights of a person, only the Second and Third have not been incorporated to the States in a manner backed by SCOTUS....

Impressive analysis, Liko81, and you are to be complimented on explaining something which has not been clearly understood by a few readers of this forum and the world at large, but I might pick a little nit so far as the 5th Amendment is concerned. Unless something has happened since I stopped reading lawbooks, the entirety of the 5th has not been incorporated, that is, the requirement of action by a grand jury in [felony cases]. And how about the 7th Amendment? It has been argued that the 7th was overtaken by inflation.

The ultimate point for this audience, of course, is that SCOTUS has not yet incorporated the 2nd. That is saying something quite different from saying that the 2nd does not apply to the states -- just that SCOTUS has not (yet?) said so. An individual state is at complete liberty to take the position that the concept expressed by the 2nd, whether or not it "applies to the states," may be implemented by that state right now. Texas is a good example of a state taking big steps in that direction.

Your starting off your interesting post with reference to the views of the anti-federalists raises an interesting, if not amusing, thought. Is it not ironic that we see commentators here in this part of the world, of all places, arguing so strongly, if not vehemently, in favor of the 14th Amendment doing its thing and overruling "States' Rights" so far as RKBA is concerned?

Jim

[Texian]

As the OP, I am tardy in expressing my thanks for such an informed and helpful response. However, I am somewhat abashed at the depth of my ignorance of constitutional law.