Battle over gun rights – Round 2

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

Charles Cherney/AP
Debating guns: Peggy Friewer, a resident of Morton Grove, Ill., addressed the village board on July 28, when the Chicago suburb repealed its longstanding ban on handguns.

The US Supreme Court's decision striking down a 32-year ban on handguns in Washington, D.C., has sparked a string of lawsuits across the country challenging the constitutionality of various gun regulations.

Two suits in Chicago seek to have that city's handgun ban declared unconstitutional. A ban on handgun possession by public housing residents in San Francisco is under attack. To avoid legal action, three Chicago suburbs have voted to repeal their gun bans, while a fourth, Oak Park, is fighting to preserve its ban.

In addition, a new lawsuit has been filed by the man who won his case at the Supreme Court. Washington resident Dick Heller has filed a suit challenging the District of Columbia's emergency gun regulations written last month to replace the handgun ban invalidated by the high court. Mr. Heller says the new regulations are too restrictive.

The flurry of lawsuits marks the second phase of what gun-rights advocates hope will become a turning point in the battle for broader protection of Second Amendment rights. On June 26, the Supreme Court declared for the first time that Americans have a Second Amendment right to keep a gun at home for self-protection.

"It is really historic," says Stephen Halbrook, a Fairfax, Va., lawyer who filed several follow-up lawsuits for the National Rifle Association within days of the high court ruling. "The decision is so detailed and tight that it is going to be hard for a future court to backtrack on it."

Gun control supporters also view the Heller decision as a critical moment, but not for the same reason. "It is a different kind of turning point," says Paul Helmke, president of the Brady Center to Prevent Gun Violence. "This really could end up being a positive for gun control."

Change in national debate

The high court invalidated Washington's handgun ban and rejected the theory favored by the Brady Center that the Second Amendment guaranteed only collective gun rights tied to militia service. But Mr. Helmke says the Supreme Court also embraced a broad range of existing gun control measures.

Rather than sweeping aside gun regulations to establish an inviolate fundamental right to keep and bear arms, the high court announced that the Second Amendment right is not unlimited. While a categorical ban of all handguns violates the Constitution, other gun regulations do not, the court said.

In his majority opinion, Justice Antonin Scalia wrote: "Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

Helmke says the Heller decision is already changing the character of the national debate over guns. Rather than fighting battles over all-out bans or unlimited gun rights, Justice Scalia's approach seems to direct the debate toward compromise at the center.

"To a great degree, what the Heller case did was it took away the extremes of the gun control debate," Helmke says. "Because of that I think we will be seeing more of a consensus develop on what can and cannot be done to deal with gun violence in the country."

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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