Extending the Second Amendment
The US Supreme Court is hearing McDonald v Chicago — a case in which the plaintiff is challenging Chicago’s handgun ban as unconstitutional. Here’s how CNN describes the issue:
The court will ultimately decide two fundamental questions: Do strict state and local gun control laws violate the constitutional “right to keep and bear arms”? And can an individual’s right to own a weapon extend beyond federal jurisdiction?
The second of these questions — extending beyond federal jurisdiction — is a logical progression of 2008′s Heller decision. Since Heller was decided in the context of the District of Columbia, the application to states or local authorities was not addressed.
What Heller did do, though, was decide that the Second Amendment was an individual right, rather than a collective “as part of a well-regulated militia” right. This was an enormous decision, with profound implications.
But do individual rights enumerated (and upheld) in the Constitution supersede a city’s duty to protect the health and welfare of its citizens? Because that’s how the City of Chicago is describing its position:
Chicago Mayor Richard Daley’s response is that the federal government is not responsible for the health and safety of the citizens of Chicago; the city is.
So on the one hand we have an individual right, enumerated in the Constitution and upheld by the Supreme Court — just like freedom of religion, or speech, or assembly — but thus far only applied to federal jurisdictions.
On the other hand we have a city’s (or other local entity’s) duty to protect its citizens.Which should take precedence?
I suspect the SCOTUSblog analysis is correct:
The Supreme Court on Tuesday seemed poised to require state and local governments to obey the Second Amendment guarantee of a personal right to a gun, but with perhaps considerable authority to regulate that right.
If that’s what they decide, the court will have gotten it right. Cities and other governmental entities cannot simply ban a Constitutional right. I’m somewhat amazed, frankly, that it took this long to get this issue decided.
53 Responses to “Extending the Second Amendment”
dletsch,
You are correct about the current state of the law. What I am talking about is its history.
The National Firearms Act, original version, was passed in 1934 at the behest of then U. S. Attorney General Homer Cummings, who wanted to outlaw private ownership of machine guns following their use by gansters during Prohibition, as well as sawed off shotguns and other firearms. He was so anti-gun that inititially he also wanted to ban handguns, but that was dropped from his proposal. Realizing that an outright ban would violate the Second Amendment, he proposed instead the NFA. See, Wikipedia, and search National firearms Act of 1934. He then unsuccessfully tried to issue no stamps for purchase but was forced to relent.
And,he was not the last to attempt this tactic as a means of banning sales of automatic weapons to the public. Here is a quote from United States v. Rock Island Armory (1991), U. S. District Court for the Central District of Illinois that shows how the tax-and-register law has been used in an attempt by government officials to kill sales,
“…since enactment of 18 U.S.C. § 922(o), the Secretary has refused to accept any tax payments to make or transfer a machine gun [or] to approve any such making or transfer, or to register any such machine gun…” The case was specific to manufacture and sale after 1986, but used the same tactic of refusing to register or accept tax payments to stop private sales.
The Court found the Secretary's actions wrongful, and appropriately so. You see, I hope, that I do not make these things up. Though I repeat that you are correct about the current state of the law.
Legally, a full-auto M11 is a machinegun under federal law. M60s are also legal, they just cost more as there are fewer in circulation.
“I think their ruling with be very narrow and restricted to the second amendment.”
Note that if (when) this happens, it clarifies and resolves most of the gun control issue.
I'd like to see state-federal lines drawn clearly, though.