Academic journal article Journal of Criminal Law and Criminology

The Responsible Gun Ownership Ordinance and Novel Textual Questions about the Second Amendment

Academic journal article Journal of Criminal Law and Criminology

The Responsible Gun Ownership Ordinance and Novel Textual Questions about the Second Amendment

Article excerpt

I. INTRODUCTION

In the wake of District of Columbia v. Heller (3) and McDonald v. City of Chicago, (4) the City of Chicago promptly amended the Responsible Gun Ownership Ordinance (the Ordinance) to further its interest in protecting the public welfare and safety. (5) The Ordinance immediately generated federal lawsuits alleging that several provisions violate fundamental rights under the Second Amendment. (6) The Second Amendment provides:

   A well regulated Militia, being necessary to the security of a free
   State, the right of the people to keep and bear Arms, shall not be
   infringed. (7)

The Chicago Ordinance is particularly worthy of evaluation for three reasons. First, now that the Second Amendment has been incorporated against the states, (8) these suits are the first in the wave of gun-control litigation that has been predicted since Heller was decided. (9) Second, the new Ordinance replaced the provisions struck down in McDonald, rendering it particularly relevant for evaluating the implications of that decision. (10) And third, the Ordinance--as originally amended (11)--contained several provisions that implicate previously unexamined limits to the text of the Second Amendment.

Until recently, scholarship has focused on whether the Second Amendment guarantees an individual right to bear arms and whether that right is incorporated against the states. (12) As those questions have now been resolved in favor of an individual right and incorporation, states are left scrambling to define the line between a legitimate exercise of their police power and infringement on the fundamental rights of their citizens. The new Ordinance is a highly visible example of this kind of legislation. A textual analysis (13) of the rights protected by the Second Amendment in this context may be beneficial in providing guidance to other states as they seek an understanding of the appropriate reach of the police power.

In Heller, the Court engaged in an in-depth analysis of the meaning of the Second Amendment and answered a number of the preliminary questions needed to evaluate these provisions. (14) However, many questions remain unanswered. Part II of this Comment will summarize the Heller decision, highlighting the conclusions reached and emphasizing the questions that remain unanswered. It will also briefly recap McDonald, which incorporated the Second Amendment against the states, and highlight the points the Court found particularly important in both decisions. Part III will attempt to use the original understanding of the text of the Second Amendment to answer key questions left open by Heller. It will then apply those answers to the new Ordinance to evaluate how the provisions will fare under constitutional scrutiny. Finally, Part IV will put the analysis in a broader context, focusing on the implications for legislatures attempting to regulate firearms after Heller and McDonald and identifying which concerns must be respected as central to effective exercise of the Second Amendment right.

This Comment will conclude that the recently enacted Responsible Gun Ownership Ordinance is likely unconstitutional, as it fails to respect the activities protected by the Second Amendment and intrudes upon concerns that were central to the Amendment's adoption.

II. BACKGROUND

A. DISTRICT OF COLUMBIA V. HELLER

In Heller, the Supreme Court squarely addressed the meaning of the Second Amendment (15) and determined that it "guarantee[s] the individual right to possess and carry weapons in case of confrontation." (16) This conclusion resolved the longstanding debate over whether the Second Amendment guarantees an individual right, or whether "the right of the people" was premised upon membership in a militia. (17)

The determination that the Second Amendment protects an individual right and the reasoning in support of that conclusion have significant implications for the meaning of the provisions within the Second Amendment. …

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