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In a 5-4 landmark decision, the United States Supreme Court followed its
ground-breaking ruling in District of Columbia v. Heller, 554 U.S. _____, and,
in reversing the Seventh Circuit’s affirmation of a District Court’s holding
denying Petitioner’s 2nd Amendment arguments against municipal firearms bans
by the City of Chicago and Oak Park, held that the Second Amendment is a
fundamental right and is incorporated against the states under the 14th
Amendment of the U.S. Constitution. The case has been remanded (returned) to
the 7th Circuit Court of Appeals for reconsideration pursuant to the decision
by the U.S. Supreme Court.
While the majority of the Court deciding in favor of McDonald held that the
2nd Amendment is incorporated by the Due Process clause of the 14th Amendment,
Justice Thomas took one of the roads argued by Petitioners’ counsel, which
made some believe that the Court overruled the Slaughterhouse and Cruikshank
decisions, and that the “privileges and immunities” clause of the Constitution
was the basis for Second Amendment incorporation. Nevertheless, Justice
Thomas’ concurring opinion, together with that of Justice Scalia’s, added to
the majority five votes needed to decide favorably for the Petitioners.
Attorney Alan Gura, who was counsel in the Heller case, successfully
represented McDonald, and other individual petitioners as well as the Illinois
State Rifle Association and the Second Amendment Foundation. Attorney Gura has
certainly made his mark in history.
A Supreme Court 5-4 decision raises a red flag as to why four of the Justices
could not see what freedom-loving Americans have believed for centuries, and
which the founding fathers of our nation perceived as a fundamental,
inalienable right deeply rooted in our nation’s history, and implicit in the
concept of ordered liberty. That right, most scholars have believed, existed
before the passage of the 2nd Amendment. The majority made frequent references
to the pre-existing right of self-defense, which is the back-bone of the
Second Amendment, and there is much to be said about the majority’s dissection
of the strained arguments posed by Justice Stevens.
The Majority’s caveat re-affirmation of the position it took in the District
of Columbia v. Heller case that various firearm restrictions, including the
prohibition of possession of firearms by felons or the mentally ill, and those
laws affecting the commercial sale of firearms, and those imposing
restrictions regarding the carrying of firearms in sensitive areas such as
government buildings and the like, still apply, raises another red flag.
Coupled with the fact that four of the Justices, and most assuredly their
successors, will continue to take an opposing stand to applications of the
principles set forth by the majority in McDonald, these restrictions can be
stretched and broadened to a point where more of our rights are suppressed.
While all agree that keeping firearms out of the hands of felons, the mentally
ill, and away from sensitive places such as courtrooms, it is the
interpretation of those restrictions that require our constant alertness and
strict scrutiny to ensure that those restrictions are not employed in an
arbitrary and discriminatory manner so as to further alienate our rights
It will be interesting to learn how anti-gun advocates and some courts will
interpret the McDonald majority’s reference that the “fundamental right
guarantee is fully binding on the states and thus limits (but by no means
eliminates) their ability to devise solutions to social problems that suit
local needs and values.” Also, quoting from the 38 states’ and amicus brief of
the State of Texas, the Court noted that “state and local experimentation with
reasonable firearms regulations will continue under the Second Amendment.”
Repeatedly, we have seen cases setting forth a basic principle of law abused
by law enforcement authorities and ignored by some courts to a point of
ludicrousness. Classic examples are registration requirements imposed to such
a degree in some anti-gun municipalities such as Chicago, and various states,
that the real aim is to defeat the thrust of 2nd and 14th Amendment
protections. Many Courts also have repeatedly ignored the protections afforded
under the 4th and 14th amendments by upholding invalid searches and seizures.
Fortunately, many of those decisions have been cured on appeal to higher
courts, but not always. That, of course, is a matter ISRA has addressed in
cases such as People v. Diggins, and by its constant watch-guard of
legislation by its lobbyists in Springfield.
ISRA is currently backing two cases that will assuredly be addressed by the
Courts pursuant to the holdings in McDonald—that is, the pending State Supreme
Court case of Wilson v. Cook County (addressing an assault weapon ban aimed at
confiscating guns normally used for hunting and target shooting), and City of
Chicago v. Patrick ( a confiscation of 276 firearms from a collector).
All should be prepared for a continued fight in the trenches regarding the
preservation of your fundamental inalienable rights, especially in light of
the new anti-gun ordinance enacted by the City of Chicago. Now, more than
ever, is the time to send your donations to ISRA so that it may continue to
fight for the preservation of your rights.
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