Monday, June 30, 2008

Gun Banning Cities and Towns React to High Court's Ruling

More reaction to the Supreme Court's Second Amendment ruling from cities and towns with gun bans in place, and the newly filed lawsuits challenging them.

Chicago and neighboring towns with gun bans:
In the years since Morton Grove passed the first handgun ban in the nation in 1981, Evanston, Oak Park, Winnetka and Wilmette also outlawed handguns. Because of the high court's ruling that Washington, D.C., cannot ban people from owning guns, all five suburban bans could now be declared unconstitutional.

Though Chicago officials Thursday vowed to fight any challenges to its 1982 handgun ban, suburban officials said it was too soon to say whether the ruling applied to them. Some felt that overturning their bans wouldn't be a big deal. Still others were outraged, such as Oak Park Village President David Pope, who said the ruling would threaten safety in his near west suburb, which banned gun ownership in 1984.

"The ruling puts [Justice Antonin] Scalia and the four other conservative justices squarely on the side of the gang-bangers who terrorize far too many of urban American neighborhoods today," he said.

Meanwhile in Wilmette, IL:
WILMETTE, Ill. -- Wilmette has suspended enforcement of its 19-year-old ordinance banning handgun possession in the wake of a U.S. Supreme Court decision that appears to invalidate such bans.

In a 5-4 decision, the court struck down Washington, D.C.'s ban on handguns, a prohibition similar to those used in several major cities, including Chicago, and a handful of suburbs including Wilmette, Evanston, Winnetka and Oak Park.

"The Law Department and the Police Department have suspended enforcement of the ordinance pending further review by the Village Board," Wilmette village attorney Tim Frenzer said Thursday. "Based on the decision today, at a minimum it calls into serious question the continued viability of the ordinance."

Frenzer said questions remain about how directly the court's decision will impact local gun laws in Wilmette and other parts of the country. Washington is not a state, and each state has its own legal language governing the right to bear arms.

"That aside, the opinion will require further review and discussion by the Village Board, but it's prudent at this point to suspend enforcement of it," Frenzer said.

And the village manager of Morton Grove, IL, a city that has one of the oldest handgun bans on the books, has announced he will seek to repeal his town's ban :
The village of Morton Grove, Ill., just north of Chicago, has one of the oldest handgun bans in the nation on its books. It's also the target of one of the five lawsuits filed by the National Rifle Association.

Village Manager Joe Wade says Morton Grove isn't going to wait for a court battle. It's going to act.

"The village of Morton Grove has every intention to comply with [the Supreme Court ruling]," Wade says. "We're going to propose an ordinance that would eliminate the possession-of-handgun ban within the village."

As Dave Kopel notes, the Wilmette and Morton Grove decisions are driven, at least in part, by pragmatism:
Both Morton Grove and Wilmette were among the cities sued on Friday by the NRA. Their decisions are sensible. While the issue of Second Amendment incorporation is still unresolved, Richard Daley's government in Chicago can spend its own funds to fight the issue all the way to the Supreme Court. If Daley wins, the suburbs can re-institute their bans. If Daley loses (an outcome that seems more likely than not if the Supreme Court takes the case), then Wilmette and Morton Grove have saved themselves hundreds of thousands of dollars of attorneys fees, since they would have to pay their own lawyers, and have to pay the plaintiffs' lawyers for bringing a successful civil rights claim.

Morton Grove was the site of perhaps the worst legal defeat for the Second Amendment in American history. The lawsuit against the ban lost 2-1 in the Seventh Circuit, and then 4-3 in the Illinois Supreme Court (notwithstanding specific legislative history from the 1966 Illinois constitutional convention that the right to arms provision would prevent handgun bans). The U.S. Supreme Court denied certiorari in the federal case. Attorneys Stephen Halbrook and Don Kates were closely involved in the Morton Grove litigation.

And in San Francisco:
“We don’t happen to believe that it’s good public policy in public housing sites where guns and violence is the highest in our city and, for that matter, respectively, in cities across America, to say ‘Hey, come on in; let’s everybody get guns,’ ” said Mr. Newsom, a Democrat.

In an interesting turn in a city known for its embrace of gay rights, the chief plaintiff in the suit against the city is a gay man living in a public housing development, owned by the federal government, who wants to have a gun to protect himself from potential hate crimes.
“The Supreme Court has now said unequivocally that this is an individual right of the American people, and that if it’s an individual right, people have to have access to it,” [the NRA's] Mr. LaPierre said. “It can’t be walled off by the political class. It would be the equivalent of saying you can have a right to free speech, but you can’t have a right to free speech in public housing.”
A city of about 725,000, San Francisco has 12,000 residents living in public housing, all of whom are required to sign a lease that forbids a broad variety of weapons, including pistols, revolvers, rifles, shotguns, automatic rifles, BB guns, as well as nunchucks, brass knuckles and stun guns. This blanket ban was begun in 2006, and the penalty for violation of the lease is eviction.

In the case filed on Friday, an anonymous gay man said that stipulation had deprived him of “any effective means of self-defense.”

Here's another article, this one from the L.A. Times:
"We are currently going over statutes at the local, state and federal level," NRA chief lobbyist Chris W. Cox said. "I am certain there will be challenges to all sorts of statutes as we move forward."

California, considered to have the most restrictive gun laws in the country, is a particularly attractive target for lawsuits by the gun lobby. Cox said the NRA was considering action against another San Francisco law that requires gun owners to store their guns in locked containers or use trigger locks.

Other California laws that gun rights groups plan to scrutinize include the state's ban on assault weapons, the permitting process for carrying a concealed weapon in Los Angeles and San Francisco, and restrictions in Los Angeles on gun retailers, Michel said.

Some lawsuits were prepared in advance of the Supreme Court ruling. "The decision today was not entirely unanticipated," he said.

He said gun advocates hope the lawsuits will lead to a broader ruling that the right to have a firearm at home for self-defense is not limited to places falling under federal jurisdiction, such as Washington, D.C. The high court did not decide that question, because the law affected only the District of Columbia.

Gun control supporters said they would vigorously fight the challenges.
As the NRA prepared to sue San Francisco, its leaders also were looking closely at a law in New York City that restricts the carrying of guns outside the home, Cox said.

"The only people who have permits to keep a firearm for self-defense outside the home are the mayor's rich buddies from Wall Street, his celebrity friends and his political cronies," Cox said.

He said the litigation would show that the right to bear arms under the 2nd Amendment "is a right as sacred and special as the 1st Amendment, the 4th Amendment and any other amendment."

The next five to ten years or so of litigation will prove crucial to extending the reach of Heller.

The first round of lawsuits are targeting the "low-hanging fruit", so to speak: outright bans on guns. Some, like Wilmette and Morton Grove, will probably reform their laws to avoid a costly legal fight. Other towns and cities (Chicago and San Francisco, for example) will likely fight tooth and nail, and those cases that go to trial to a judgment will get appealed, with the goal of the pro-gun forces to have the federal appeals courts rule on the incorporation issue, that is, whether the Second Amendment also applies to the states, and not just the federal government.

I imagine one of the strategies that groups like NRA, SAF and others will probably consider pursuing is filing suits in states (such as California) that are in anti-gun federal circuits (such as the Ninth Circuit), who will likely rule against incorporation of the Second Amendment against the states, as well as suing states in circuits (such as the Fifth Circuit) that are likely to rule in a pro-incorporation manner, in order to set up a circuit split, that is, where different federal circuits have reached opposite conclusions on the same issue. Circuit splits are one of the issues that the Supreme Court considers in deciding whether or not to hear a case, which is the ultimate goal -- a Supreme Court ruling that the Second Amendment applies to the states, not just the federal government and federal enclaves like D.C.

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