Gun Rights, the Supremes and What it Means to CA – UPDATED

Today, Tuesday, the US Supreme Court will take up another landmark case with regard to the issue of gun rights.

Otis McDonald v. City of Chicago challenges Chicago’s citywide ban on the possession of handguns.

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UPDATE: It appears that the justices are leaning toward really doing the no-kidding landmark thingy with this one. Here’s the LA Times take by David Savage. And here’s Adam Liptak for the NY Times on today’s hearing.

The court has posted a transcript of the hearing here.

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Now for background, here’s how the folks at the Christian Science Monitor’s editorial pages explain the core of the case, and how it relates to the Supreme Court’s 2008 Heller decision that opened the door to this new case to begin with:

…Must Chicago and other locales drop their ban on handguns just as the justices forced Washington, D.C., to do two years ago?

If the high court decides yes, then state and local gun regulations across the nation could be shot full of holes. That’s why it’s so important for the justices to clarify not only where the “right to keep and bear arms” applies jurisdictionally, but how fundamental a right it is.

Is the Second Amendment right akin to First Amendment rights to free speech and the free practice of religion, which carry few restrictions? Or is it somehow a lesser right, subject to greater regulation?

This question is related to the case at hand — McDonald v. the City of Chicago — but it is not the issue immediately before the justices. What the plaintiff in the Chicago case wants to know is whether people living outside federal enclaves such as Washington, D.C., also have the individual right to own a gun for self-defense.

In the 2008 landmark case of the District of Columbia v. Heller, the justices ruled for the first time that gun ownership is an individual right — not just a right for militias. They overthrew Washington’s handgun ban, which was similar to Chicago’s, and allowed Richard Heller to have a gun in his home for self-defense. But the justices didn’t say whether this right extends beyond federal jurisdictions.

Many Chicago residents fear, including Chicago mayor, Richard Daley, that striking down the decades old ban will simply enable the city’s already healthy illegal gun trade to flourish with less hindrance, thus meaning more deaths from gun violence.

Those who want the ban overturned contend that allowing law-abiding citizens to legally arm themselves will improve safety, not the reverse.

Lawrence Hurley of the Daily Journal, has an excellent explanatory piece on how the new case could impact California—and how, Attorney General (and gubernatorial candidate) Jerry Brown (among others) views the subject.

Since the Daily Journal is hidden behind a paywall, Hurley has kindly allowed me to post the article for you below:

U.S. SUPREME COURT • Mar. 01, 2010
California Attorneys Weigh In on Guns

By Lawrence Hurley,Daily Journal Staff Writer

WASHINGTON – Reflecting strong California interest in a major gun rights case before the U.S. Supreme Court, lawyers from the state have been heavily involved on both sides as this week’s oral argument approaches.

The court will hear arguments Tuesday as to whether the Second Amendment right of individuals to own firearms can be applied to state laws and regulations via the 14th Amendment. McDonald v. Chicago, 08-1521.

Of 52 amicus briefs in the closely watched case, California-based lawyers filed 11. Another two were filed by Washington-based lawyers on behalf of clients from California.

Although the latest case before the high court is out of Chicago, it closely mirrors one currently before the 9th U.S. Circuit Court of Appeals concerning Alameda County’s gun show ban that prevents such events from being held on county-owned land.

It is also a sequel to the Supreme Court’s decision in 2008 finding that the Second Amendment extends to an individual’s right to bear arms. Heller v. District of Columbia, 554 U.S. 290. That case, which only involved federal law because the jurisdiction in question was the District of Columbia, didn’t address whether the Second Amendment applied to states.

In the California case, a unanimous 9th Circuit panel concluded in April 2009 that the Second Amendment did apply to the state but that states nevertheless had the authority to regulate. Nordyke v. King, 2009 DJDAR 5557. Judge Diarmuid F. O’Scannlain wrote in the opinion that the ban was not problematic because the Second Amendment as interpreted by the Supreme Court in Heller, protects the right to bear arms only in self-defense, not the right to carry a firearm on publicly-owned land.

The court later re-heard the case en banc in September but held off issuing a decision after the Supreme Court took up the issue.

The 7th Circuit and 2nd Circuit have both concluded that the Second Amendment isn’t incorporated against the states via the 14th Amendment guarantee of due process, meaning that the right to bear arms is not an individual right under state law unless the state provides for it in its constitution.

Among the many amicus briefs coming out of California is one filed by the gun rights activists who challenged the Alameda County regulations and California Attorney General Jerry Brown, who filed a brief back before the justices decided to hear the case, urging that the court decide the issue once and for all. Also keen to have their voices heard are 34 California district attorneys and even experts on American colonial history. Overall, seven of the briefs filed by California lawyers are in support the City of Chicago and the Village of Oak Park, which are defending their gun regulations, while four support efforts by the National Rifle Association and others to overturn the regulations. Several of the briefs were filed on behalf of out-of-state or national groups.

In Attorney General Brown’s brief, he pointed out that California, unlike 44 other states, does not have a provision in its constitution that mirrors the Second Amendment.

Brown wrote that “the court should extend to the states Heller’s core Second Amendment holding that the government cannot deny citizens the right to possess handguns in their homes, but also provide guidance on the scope of the states’ ability to reasonably regulate firearms.” Brown did not file a brief supporting either side in Heller.

Donald E.J. Kilmer Jr., the San Jose attorney who argued the 9th Circuit case on behalf of gun show operators, urged the court in his brief to not only incorporate the Second Amendment but also give lower courts guidance on how to approach cases on gun regulation like the Alameda County gun show case.

He wants the Supreme Court to require lower courts to apply strict scrutiny, the form of review reserved for balancing constitutional rights against government interests, when a fundamental right is at issue or the governmental regulation being assessed involves a “suspect classification,” when analyzing gun regulations.

“The government should have some compelling reason for saying ‘you can’t engage in this conduct’,” he said. Alameda County made no such effort in his case, he said.

What Kilmer described as “common sense” laws, such as those requiring background checks for those attempting to purchase firearms, could meet such a standard, he added.

In the brief filed on behalf of California district attorneys and other groups, attorney C.D. “Chuck” Michel of Michel & Associates in Long Beach, argues that incorporation of the Second Amendment would constitute a recognition of what most Americans believe anyway: that there is an individual right to armed self-defense, even in states like California that don’t have such a provision in state law.

“The bottom line is that once the federal right is incorporated, then the state right – or lack thereof – becomes less relevant,” Michel, who represented the NRA in the 9th Circuit, said in an interview. “In that respect, it’s critical that the Second Amendment is incorporated.”

The city of San Francisco, which settled its own case over gun regulations in public housing in the wake of Heller, signed onto a brief supporting Chicago that was filed by Henry C. Su of Howrey in Palo Alto on behalf of various cities, including Oakland, Sacramento, and Richmond.

The brief calls upon the Supreme Court not to disrupt the “delicate federal-state balance” that allows states to regulate gun ownership. Su argues that the Second Amendment was enacted solely to protect the states and citizens from federal power. Therefore “it makes no sense to incorporate the right to bear arms against the states.”

Owen J. Clements, San Francisco’s chief of special litigation, warned of the “scary prospect” of local jurisdictions, especially smaller cities with budgets to match, having to worry about litigation costs whenever a gun regulation is considered.

A Supreme Court ruling incorporating the Second Amendment would likely have “a chilling effect on reasonable gun regulations,” he added.

In another brief arguing against incorporation, Robert A. Goodin of Goodin, MacBride, Squeri, Day & Lamprey in San Francisco adopts a historical approach. He represents historians who disagree with the Supreme Court’s conclusion in Heller.

The brief contains references to historic texts like William Blackstone’s Commentaries on the Laws of England, published in 1769, the English Bill of Rights from 1688, and proceedings of the British House of Commons from the early 1800s.

Goodin, who conceded the brief is quite unlike his usual legal work, said the Second Amendment was intended only to enshrine the right of individuals to participate in the local militia.

“Heller got it wrong,” he said.