Battle over gun rights – Round 2

Handgun bans under fire after high court's ruling. Oak Park, Ill., fights back.

from the August 14, 2008 edition

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But the Heller decision has also set the stage for more litigation, and potentially more landmark opinions.

Federal versus state

The central issue in the two Chicago cases and the Oak Park case is whether the Heller decision even applies in Illinois. Specifically at issue is whether the Second Amendment can be enforced against state and local governments or is only applicable against the federal government and in federal jurisdictions like the District of Columbia.

When the Bill of Rights was adopted, it was designed as a check on the power of the national government, not the state governments, according to legal scholars. After the Civil War, many of the protections of the Bill of Rights were made enforceable against the states through adoption of the 14th Amendment. The high court has never explicitly ruled that the Second Amendment applies to state and local governments, scholars say.

That question is relevant to Chicago and Oak Park because if the Second Amendment cannot be enforced against states and cities, the lawsuit challenging local handgun bans must be dismissed. On the other hand, if the Second Amendment applies like many other constitutional amendments, the local gun bans will likely be struck down just as the Washington ban was struck down.

To political leaders in Oak Park the gun ban issue is a matter that should be determined by local elected officials, not judges. "For units of local government there are all sorts of debates over the effectiveness of handgun regulations, but Oak Park feels like it should have authority to make that decision itself," says Lance Malina, a Chicago lawyer defending the village in the suit.

Another key legal question looming after the Heller decision is how restrictive gun regulations in Washington can be without violating the Second Amendment.

Weeks after the Heller decision, Washington's city council replaced its handgun ban with a set of tough regulations and licensing requirements. The rules classify all semiautomatic pistols as machine guns, which are outlawed. In addition, the city requires that firearms in the home be kept unloaded and either disassembled or secured by a trigger guard. The only exception is when a resident at home seeks to use the weapon against a "reasonably perceived threat of immediate harm" to a person within the home. "It is almost like the robber has to make an appointment with you so you can get your gun ready," says Mr. Halbrook, Heller's attorney in the new suit.

Halbrook says the classification of semiautomatic pistols as machine guns amounts to an unconstitutional ban, and the in-home restrictions on possession of a working gun are also unconstitutional.

In addition to suits challenging gun bans, some criminal-defense lawyers are trying to use the high court's Heller decision to undercut charges of unlawful possession of a firearm by a convicted felon. Criminals enjoy a Second Amendment right to the protection of a gun at home, too, these defense lawyers argue.

One analyst says he's found 10 cases so far where judges were urged to follow the Heller decision and dismiss felon gun charges. None have been successful.

Writing in the Heller decision, Justice Scalia specifically mentioned that felon gun possession laws were still in full force.

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