The Right to Bear Arms in Your Home: McDonald v. City of Chicago

7 years ago

Photo 2 Boys and Weapons

My Darling Boys seem to turn everything into a weapon: a stick or baseball bat can easily be a sword; some Blocks stuck together quickly become a ray gun, etc. We don't expose them to violent situations; we don't watch TV; we don't own weapons of any kind. The Darling Boys do watch children's animated movies though, and if you really pay attention, you will notice there are quite a few weapons and dangerous situations in those movies (think Beauty and the Beast; Madagascar; Bambi and many others). There is also the occasional ray gun or sword in their books too (think Too Many Toys and Peter Pan). Yet there is always a good v. evil theme to stories, movies and life. I think that it's an innate male characteristic to gravitate toward the use of force and aggression. It's how they deal with this need for physical force that makes the experience positive or negative. And for this issue, I read books on parenting boys. On the issue of weapons, Dear Husband and I are a united front.

Liberal Viewpoint

As I stated from the first post of this blog, I tend to lean to the left on the political spectrum. I have tried to present the post topics in a straight up, "just the facts, ma'am" manner. And I think I have done just that. I don't intend to impose my ideals on you, my readers. I will say that our household does not own any guns, or other weapons; we don't hunt; and we don't shoot for sport (meaning clay pigeons and the sort). I have handled guns. I have read about the internal mechanisms of guns; studied about how guns fire; learned about ammunition and the marks left by the gun when it fires. I have viewed my fair share of homicide scene photos of blood spatter and dead bodies. I have heard and read testimony telling of the tragedies caused by gun-wielding individuals. We don't feel the need to "protect" ourselves by owning a gun. I worry about my children visiting friends whose homes do contain guns and how those guns are stored.

Analysis of a Gun Control Case

Last week, the U.S. Supreme Court, in a 5-4 decision written by Justice Alito handed down an opinion to a case that ultimately limits the amount of authority states and municipalities hold in regulating guns. While the premise of the case and its implications have to do with the 2nd Amendment, the right to bear arms, the Court's decision in last week's case, McDonald v. City of Chicago, actually determines whether the 2nd Amendment is included in the 14th Amendment, thereby making the 2nd Amendment applicable to the states.

District of Columbia v. Heller

For the Supreme Court's interpretation of the 2nd Amendment, you have to go back two years to District of Columbia v. Heller, a case that originated out of the DC Circuit. In Heller, the Court struck down a flat ban on handguns that had been enacted in Washington, D.C. This was the first time the Court had found that the Second Amendment guaranteed a personal right to have a gun for self-defense in the home, enforceable against federal laws or those in the federal capital city. Heller nullified that law without saying that it was using a "strict scrutiny" test. Instead it broadly stated that the ban would fail using any constitutional test. Bear in mind, Heller applied only to federal laws.

McDonald v. City of Chicago

At issue in McDonald was a City of Chicago ordinance that provided that "no person shall ... possess ... any firearm unless such person is the holder of a valid registration certificate for such firearm." The Code then prohibited registration of most handguns, thus effectively banning handgun possession by almost all private citizens who reside in the City. Similarly, Oak Park made it "unlawful for any person to possess ... any firearm," a term that includes "pistols, revolvers, guns and small arms ... commonly known as handguns." The Petitioners complained that these laws left them unprotected and defenseless in their homes. The Court held that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller and sent it back to the Seventh Circuit Court.

A Fundamental Right

The Court did not specifically rule on the constitutionality of the laws at issue, nor did it tell the Seventh Circuit Court what constitutional standard to apply in judging that law when the case returns there. In fact, the Court gave the Seventh Circuit Court judges little guidance on how to analyze these laws at all. What the Court did state is that the right to have a gun for self-defense in the home is a "fundamental" constitutional right. The term "fundamental right" carries a lot of clout when you are talking about the constitution. Generally, if a right is deemed to be fundamental, any law that seeks to limit it will be judged by the stiffest constitutional test there is: it must satisfy "strict scrutiny," meaning that it will be struck down if the government's need for it is not "compelling" and if the approach it takes is not the narrowest possible way to get at the problem. Most laws don't survive strict scrutiny.

Questions Remain

In his dissent, Justice Breyer noted, "countless gun regulations of many shapes and sizes are in place in every state and in many local communities." He then catalogued some of the questions that will now arise as many of those laws are tested: "Does the right to possess weapons for self-defense extend outside the home? To the car? To work? What sort of guns are necessary for self-defense? Handguns? Rifles? Semi-automatic weapons? When is a gun semi-automatic? Where are different kinds of weapons likely needed? Does time-of-day matter? Does the presence of a child in the house matter? Does the presence of a convicted felon in the house matter? Do police need special rules permitting patdowns designed to find guns? When do registration requirements become severe to the point that they amount to an unconstitutional ban? Who can possess guns and of what kind? Aliens? Prior drug offenders? Prior alcohol abusers? How would the right interact with a state or local government's ability to take special measures during, say, national security emergencies?…These are only a few uncertainties that quickly come to mind."

And to this, Justice Alito responded, that "the right it was newly protecting was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." And Alito repeated, from the Heller opinion, the assurance that "our holding did not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons and the mentally ill,' 'laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

The Scoop

While the Heller decision was profoundly important for finding in the Second Amendment an individual right to own a gun, it applies to federal laws. The vast number of laws that seek to regulate gun possession and use are those enacted at the state and local levels, not by the federal government. So, it will be interesting to watch this issue as the lower courts test and flesh out what the Court actually means by the McDonald decision. On Wednesday, I will post tips on gun safety in the home. Over and out…

Anna

www.MotherlyLaw.com

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