Will Supreme Court Do the Right Thing?

The US Supreme Court decision on whether to strike down Chicago's handgun ban in, is expected to be announced later this month.
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As we mark the 42nd anniversary of the handgun slaying of 42-year-old Robert F. Kennedy in Los Angeles, we also wait to see if the US Supreme Court will strike down Chicago's handgun ban in McDonald v. Chicago, which is expected to be announced later this month.

I had a front row seat, next to the attorneys for Petitioner Otis McDonald, the 76-year-old South Side African-American grandfather, who brought this action. From the justices' questions, it sure didn't seem like a slam dunk for the gun lobby.

Yes, two years ago the Supreme Court struck down the District of Columbia's handgun ban in D. C. v. Heller, but it was by the narrowest of margins, a 5 to 4 vote. During their give-and-take with counsel on March 2, the justices made known the important distinctions between the two cases.

First off, the District of Columbia is not a state. It is a federal enclave. This means D.C. has no state constitution, unlike Chicago, which is subject to the Illinois state constitution. The Illinois constitution, like 43 other states', already gives its citizens the right to keep and bear arms subject to state police powers.

Attorney Benna Ruth Solomon, who represents the city of Chicago, explained it this way: "We are defending the right of choice for state and local governments. We are not the party seeking to change the law that has existed for the past 200 years. We are not seeking to impose Chicago's handgun ban on other jurisdictions. Gun regulation decisions should be made based on local conditions."

Justices Antonin Scalia and Clarence Thomas, in particular, have traditionally paid careful heed to states' rights. As Justice Antonin Scalia put it during oral arguments in McDonald, "If there is a constitutional right, we find what the minimum constitutional right is, and everything above that is up to the states. In Heller, we did not decide the concealed carry law. You may have a great deal of divergence from state to state, and on that I suppose the legislature would do statistics. Statistics are not important for judges but they would be for the legislatures."

Does the US Supreme Court want to tie up its docket for the next ten years with gun cases? Will this be the Roberts Court's legacy? To be viewed as constitutionally encroaching upon the legislature's prerogative to decide which guns and weapons are acceptable based on each state's unique statistics?

The Supreme Court struck down D.C.'s gun law, because it essentially emasculated any right to bear arms. Oh, you could own a gun in D.C. and keep it in your home, if it were locked and unloaded. But it is not easy to defend yourself if you have to unlock and load a gun when seconds may mean the difference between life and death. Chicago's gun law allows for loaded rifles unlocked and ready to go for self-defense in the home.

Congressman Jesse Jackson, Jr., who, like Otis McDonald, lives on Chicago's South Side, told me: "I hope the Supreme Court will not make another sharp, doctrinal shift and cast aside judicial precedent. The Constitution, legal precedent and common-sense must prevail over a radical 'any gun, anywhere, anytime' argument."

Chief Justice John Roberts left the door open for the states to be actively involved in regulating firearms even if the Court rules to incorporate the Second Amendment as to the states. "Incorporation doesn't say anything by itself about whether those types of regulations that you think are reasonable and your friends think may not be reasonable, are valid or not."

As Justice Anthony Kennedy pointed out during questioning: "There are provisions of the Constitution, of the Bill of Rights that have been incorporated against the states where the states have substantial latitude and ample authority to impose reasonable regulations--rights respecting property, the Cruel and Unusual Punishment Clause. We look to see what the political process does. Why can't we do the same with firearms?"

Why not indeed? Conceivably, the Supreme Court could hold that the Second Amendment right to bear arms applies to the states yet still find Chicago's gun ordinance to pass constitutional muster.

As a footnote, what doesn't raise a constitutional issue is a home security system. Often it can be professionally installed for as little as $100. And it can't nod off and catch some shuteye as a homeowner is likely to do. Instead, it works 24/7 to protect you. A medical alert bracelet, can work in a pinch, to summon help against a home intruder as well.

For it's hard to get away from the picture of a grandparent who can't shoot straight or see straight without his spectacles (and, let's be honest, who wears eyeglasses to bed) killing an innocent bystander like the early A.M. paper boy or a relative because of a bump in the dark. Remember, it only takes one misplaced shot to go from law-abiding citizen to my grandpa, the felon.

Lonna Saunders is a Chicago attorney and writer.

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