You've a Long Way, Baby: The Second Amendment Finally Applies to the States. Now the Fight over Gun Rights Really Begins

By Doherty, Brian | Reason, October 2010 | Go to article overview

You've a Long Way, Baby: The Second Amendment Finally Applies to the States. Now the Fight over Gun Rights Really Begins


Doherty, Brian, Reason


IT WAS THE MORNING of June 26, 2008, and Alan Gura had just won the first case he'd ever argued in front of the Supreme Court. Before taking a media victory lap to celebrate his historic vindication of the Second Amendment in D.C. v. Heller, Gura headed to the Court's public information office for a moment of privacy. He called an old buddy from law school, the Chicago attorney David Sigale. "File it," Gura said.

"It" became, almost exactly two years later, Gura's second victory before the Supreme Court, McDonald v. Chicago. That case--decided, like the first one, by a narrow 5-4 majority--established that the gun rights recognized in the District of Columbia because of Heller must also be respected by states and cities outside the purview of the federal government. The Second Amendment's protection now applies not just to D.C.'s 600,000 residents but to more than 300 million people across the country.

[ILLUSTRATION OMITTED]

The magnitude and reach of this earthquake in American law, which has touched off slow-motion aftershocks throughout the 50 states, are still uncertain. But whatever the future holds, Americans' ability to own guns has, at long last, taken its place among the other individual rights spelled out in the Bill of Rights.

The invalidation of handgun bans throughout the country, accomplished in the space of two years, was sudden and surprising even to those who have spent decades laying the groundwork. Take Alan Gottlieb, founder and president of the Second Amendment Foundation, which began backing Gura's various gun lawsuits after Heller. Since founding the SAF in 1974, Gottlieb has been hosting academic conferences, supporting legal scholars and historians, and filing carefully targeted lawsuits in defense of gun rights. Still, he says, "six years ago if you had said [the gun rights community would] see two cases get to the Supreme Court and two victories, I would have said, 'Not in my lifetime. Maybe in someone else's.'"

Gottlieb attributes the rapid turnaround in part to the brazen overconfidence of gun controllers. If Washington, D.C., had not challenged the March 2007 appeals court decision overturning its highly restrictive gun ban, the Supreme Court would not have had the opportunity to declare in Heller that the Second Amendment guarantees an individual right to arms. If Chicago had not insisted on maintaining its gun ban after the Heller decision, there would have been no McDonald, and the question of whether the Second Amendment binds states and cities would have remained unsettled. "We needed a little luck, and the other side gave us that luck," says Gottlieb. "Our opponents are our biggest supporters."

The Case and the Clients

Heller was momentous, but it left many issues unresolved. The majority opinion by Justice Antonin Scalia did not address the constitutionality of gun control laws that fall short of a complete handgun ban. Nor did it say whether the Second Amendment, like most other provisions of the Bill of Rights, applies to the states as well as the federal government, which has direct authority over the District of Columbia.

The next battleground presented itself. Chicago and several of its suburbs--Oak Park, Evanston, and Morton Grove--had laws very similar to the D.C. ordinance that was overturned in Heller. Immediately after Heller, Gura, the SAF, and the Illinois State Rifle Association challenged those laws in federal court. So did the National Rifle Association (NRA), which filed separate lawsuits. By the time the cases reached the U.S. Court of Appeals for the 7th Circuit in May 2009, only Chicago and Oak Park were still sticking to their gun bans. (One Chicago-area city, Wilmette, dropped its own gun laws after Heller without being sued.)

Under Chicago's law, residents were not permitted to own a gun without registering it. But they weren't allowed to register handguns, and they couldn't register a long gun if it had already been in their possession. …

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