Chicago lays out handgun legal strategy
The City of Chicago is planning to defend its handgun ban with a highly technical legal argument that some law scholars say isn't likely to fly.
Mara Georges, the city's chief lawyer, appeared before aldermen yesterday pledging to "vigorously" defend Chicago's 1982 handgun prohibition.
The city is currently facing two suits in district court challenging
that ban in the aftermath of a June 26 Supreme Court decision that
threw out a handgun ban in Washington, D.C.
In that case, the court ruled for the first time that the Second Amendment provides a right for individuals to bear arms.
Georges says the city is likely to argue that the court's decision applies only in Washington, a federal territory, and not to the states.
"The opinion does not say that the 2nd Amendment right to bear arms applies to states or municipalities," says Georges.
Some experts say that argument will face tough scrutiny in court.
"If I were making policy recommendations to the City of Chicago, it
would be back off this real fast, and just get rid of it before it gets
into court," says Harry Wilson, a political science professor at Roanoke College in Virginia, and author of Guns, Gun Control and Elections.
Wilson says if the city followed that path, officials could replace the current comprehensive ban with limited gun restrictions that would pass muster in court.
"There are lots of less extreme restrictions on
ownership and possession that would be upheld," he says.
University of Chicago law professor Geoffrey Stone also says the city's argument may run into trouble.
"It's more likely than not that the
Court will end up saying that the Second Amendment governs
the states," he says.
When the Bill of Rights was first created, the intention was to provide people with rights only against the federal government, Stone says.
Over the years, those protections have been extended to the states under a legal theory known as the doctrine of incorporation.
Georges says the city is on strong legal ground in defending its ban, citing three Supreme Court decisions holding that the Second Amendment is not incorporated.
Stone says there are plausible reasons why the court might not extend Second Amendment rights to states and cities.
It's possible, he says that the court might not find the right to bear arms equal in importance to the right to freedom of religion or the right to be free from unreasonable searches and seizures.
However, most of the rights found in the first ten amendments have been extended to states and cities.
Georges allows that the same could eventually happen with the right to bear arms.
"I anticipate that at some time this could have an impact on our gun control laws," says Georges. "But that would not be, at least in my legal opinion, for a while."
Meanwhile, she says, the city is prepared to take its case all the way to the Supreme Court if necessary.
"We would like to be the test case to be able to present our argument," she says.
Richard Pearson, executive director of the Illinois State Rifle
Association, says he expects the city's strategy to fall short.
"The Supreme Court does say it [gun
ownership] is an individual right," says Pearson. "Regardless of
whether that individual is in an area governed by the federal
government or a municipality, it is still an individual right."