As the Supreme Court sifts through the Second Amendment case, McDonald vs. Chicago, anxious gun owners look to take on state and federal gun laws across the country. The decision made by the Highest Court will unsnap gun-ownership laws; and possibly prompt additional cases in addition to the more than 15 federal and state gun cases currently filed across the country.
The McDonald case was filed by the Second Amendment Foundation (SAF) and the Illinois State Rifle Association (ILSFA) and Dave Workman of the SAF explained even though the National Rifle Association (NRA) was able to argue their position before the Supreme Court it has never been their case.
The plaintiff’s lost 10 minutes of the precious 30 minutes of oral arguments before the Supreme Court. Workman sees a victory on the horizon for gun rights, but like all experts, he sees the High Court deciding the Second Amendment case using a pathway through the 14th Amendment.
No matter how the victory is obtained, gun owners in all states will enviably be the winner with the prediction decision of the McDonald case.
This case now rests in the hands of the Justices. The McDonald case is aiming to disarm a 27-year-old Chicago law banning handguns, requiring owners to pay an annual taxation of firearms, and interfering with the right of law-abiding individuals to keep guns for self-defense.
It’s worth pointing out in the landmark case of District of Columbia vs. Heller, the Supreme Court said that the Second Amendment guarantees an individual right to keep and bear arms. However, as that case concerned only the actions of the District of Columbia government, a federal entity. As a result the Supreme Court did not rule that the right applied to states and local governments. As time unfolds so may the interpretations and almost the entire Bill of Rights, which could be been applied to state and local governments through the 14th Amendment.
“The freedoms we enjoy as Americans are secured to us against violation by all levels of government,” said Alan Gura, of Gura & Possessky. “State and local politicians should be on notice: the Second Amendment is a normal part of the Bill of Rights, and it is coming to your town.”
Some gun history
Looking back to pre-Civil War U.S.A. the courts said that the Bill of Rights had only powers and it allowed the states to impose more restrictions on their constituents.
However during the backlash of the Reconstruction period, the Supreme Court saw the 14th Amendment as a narrow way to slow the “privileges or immunities’ clause. As it turned out the Supreme Court didn’t think the states had any Second Amendment powers.
Once the twentieth century unfolded the court shifted and thought fundamental liberties should be protected from the infringement by the 14th Amendment’s Due Process clause.
Looking back, a number of constitutional lawyers think the court erred with their decision in 1873. Looking forward, attorney Alan Gura for the plaintiff hopes the Justices resurrect the privilege and or immunity clause from the cemetery allowing McDonald a win and therefore extending his right to own a handgun for self-protection to all American citizens in every state.
In other Second Amendment cases, Attorney Rachel M. Baird represents two Connecticut residents, M. Peter Kuck and James F. Goldberg, in two federal complaints filed in 2007 claiming that the fourteen to twenty-two month wait for hearings on state carry permit denials and revocations violates the Second and 14th Amendments. A case involving both Kuck and Goldberg is currently awaiting a decision from the Second Circuit Court of Appeals, which heard oral arguments on September 17, 2009.
The 2008 Heller decision and the forthcoming McDonald decision will impact claims such as those brought by Kuck and Goldberg that address the lawful parameters of state government’s day-to-day regulation of the right to bear arms. For individuals such as Kuck and Goldberg, incorporation will be only the first step toward establishing what process they are due from the government where the right to bare arms is concerned.”
In October of 2009, attorney Paul Neuharth in San Diego filed a Federal gun case against the San Diego Sheriff’s Department. The case involves Edward Peruta being denied a state permit to carry a concealed weapon based on current residency and good cause grounds.
Peruta points to the demographics of San Diego and his other home in Connecticut. “In the state of Connecticut 156,000 residents have the right to carry a gun, compare that statistic to San Diego (which is similar in size to Connecticut) where the right to carry a loaded gun is somewhere around the 4,500 number – very low,” he explains.
Why the need for a gun? “My self defense and my profession,” he simply states.
Detractors of gun rights claim and discuss the possible Parade of Horribles could disclose the Supreme Court ruling and play out this way; tougher laws emerge and pretty soon there are no federal gun restrictions and those on the state level are legally dubious. Pretty soon, this fear goes, everyone is packing everywhere.
However, the opposite is the fear for gun activists. If the Justices were to find a way to uphold and thus strengthen D.C.’s ban. This prompts gun control advocates to push for similar ordinances and legislation across the nation. Pretty soon, every jurisdiction could be prompted to prohibit the possession of firearms in the home.
A tough decision indeed lies ahead for the Justices
Workman points to a Chicago Tribune article that compared the Windy City’s murder rate skyrocketed upward to 41 percent once the harsh ban was put in place that compared with an 18 percent rise in the entire United States
“The bottom line is that Americans always have had a constitutional right to possess guns, and local and state governments should be much more limited than they have in the past in the limitations they can place on those rights,” according to the Clarksville Leaf Chronicle.
According to Workman, The New York Times editorial staff has never seen a gun law that it didn’t like.
In a recent story the NY Times featured a “Learning Network” exercise in which it asked for the reaction to open carry in coffee shops. “Students ages 13 and older were invited to weigh in and many of them took off the gloves.” If the Times thinks it has trouble with older generation “gun nuts,” the next generation now coming up to bat is going to give them 24/7/365 heartburn, Workman says. “Many of the responses were not only well-thought-out, but also rather diplomatic. They responded and signed their responses with a first name only.”
According to Miles, “Keeping and bearing arms is a right protected from ANY governmental infringement by the 2 Amendment to the Constitution. That means that it is not the government’s job to regulate, limit, decide, poll, express an opinion, prohibit, ban, register, forfeit, destroy, convict, kill, approve anything involving arms when it applies to the People, including whether I open carry or carry concealed; whether I carry of not.”
Either way you look at gun rights, the rules will change by the end of June. As a result it is most likely the courts can expect a flood of cases. It won’t matter if Americans want the right to carry or not, lawyers across the country will make a good living taking the Supreme Court decision apart.
Part three next
For more information about Dave Workman; http://www.examiner.com/x-4525-Seattle-Gun-Rights-Examiner
For more stories; http://www.examiner.com/x-10317-San-Diego-County-Political-Buzz-Examiner
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