BY Shulamit Shvartsman for Lawyers.comsm
- Update: A North Carolina law permitting the governor to restrict the carrying of guns in an emergency is challenged in a federal lawsuit
- Update: The US Supreme Court ruled that Chicago’s handgun ban was unconstitutional
- The Second Amendment to the United States Constitution gives citizens the right to bear arms
- The right to bear arms means that the federal government can't enact laws that limit the right to carry a gun
- The Supreme Court will hear a case this term that attempts to extend this right to state actions as well
A flood of lawsuits challenging gun bans are expected to hit courts across the country in the wake of the US Supreme Court’s ruling that the Chicago handgun ban was unconstitutional. Immediately following the Supreme Court’s decision, a lawsuit was filed in North Carolina to challenge a state law that allows the governor to declare states of emergency that restrict who can carry guns in public.
Although the Supreme Court found the Second Amendment right to bear arms prevented Chicago’s total ban on handguns, the Court indicated that reasonable gun control restrictions could be allowed. The North Carolina lawsuit is considered a test case to determine whether less restrictive gun control measures are constitutionally permitted.
In a victory for gun rights activists, the US Supreme Court struck down Chicago’s ban on handguns. The Court reaffirmed the view that the right to possess guns for self-defense is guaranteed by the Second Amendment to the US Constitution.
The Court went further to hold that States are prohibited from making laws that infringe on this right because of the Due Process Clause of the 14th Amendment. The Court explained that Due Process prevents states from infringing on those rights that are fundamental to our concept of liberty.
Looking at history and tradition, the Court concluded that the right to have a handgun in the home for lawful self-defense is a fundamental right protected by Due Process.
In its upcoming term, the US Supreme Court will address gun control laws.
The Second Amendment
The Second Amendment to the US Constitution is part of the Bill of Rights and provides citizens with the right to bear arms. It says that "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." The American Bar Association has commented that this provision is one of the most disagreed upon and least understood rights.
District of Columbia v. Heller
Last year, the Supreme Court heard a case dealing with gun control, District of Columbia v. Heller. There the Court considered the constitutionality of gun control laws in the District of Columbia and decided that the law that barred citizens from keeping weapons their homes for self-defense violated the Second Amendment. This case was significant because it expanded the Second Amendment right to own a weapon to individuals and not just "militias."
However, the Heller decision left a gap. Since the District of Columbia is a considered federal territory and not a state, it didn't address whether the Second Amendment limits the states as well. Older cases, all dating to the last century, have found that the Bill of Rights doesn't apply to states, giving them more freedom to enact stricter laws.
McDonald v. Chicago
The case considered this term is McDonald v. Chicago. This case was brought by residents of Chicago claiming that the handgun ban in the city is a violation of their Second Amendment rights. They say the law needs reversing as in the Heller case.
The main provisions of the Chicago law in the challenge include:
- A ban on the registration of handguns
- A requirement that guns be registered prior to purchase
- A requirement to re-register guns yearly
- A law making any gun permanently non-registrable if its original registration lapses
Applying the Bill of Rights to States
Since 1873, judges have decided that the Fourteenth Amendment's Privileges and Immunities clause doesn't mean the Bill of Rights automatically apply to states. The Bill of Rights is currently applied to states on a case by case basis. McDonald's significant because not only does it deal with gun control but it may hold that the entire Bill of Rights may be applicable to the states.
The US Constitution generally affects the federal government and not state and local action. The Supreme Court has extended most, but not all, of the protections of the Bill of Rights to the states. They've done this by using the Due Process clause of the 14th Amendment that acts as a bridge between the Bill of Rights and state actions.
Most legal scholars expect the court to extend the Second Amendment to the states. However, they're urging the Court to take a different route to that result. Rather than relying on the 14th Amendment's Due Process clause, the Court should look to the amendment's Privileges and Immunities clause, which says that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."