Supreme Court and Guns: Justices Have Yet to ‘Clarify the Entire Field’

Dec 18, 2012 6:00am

When the Supreme Court recognized for the first time that the Second Amendment protects an individual’s right to bear arms in a bitterly divided 2008 decision, gun control advocates feared the worst, but the ruling has not led to widespread overturning of gun regulations.

Writing for the majority in the 5-4 decision called District of Columbia v. Heller, Justice Antonin Scalia struck down a strict hand gun ban in Washington, D.C.

The ban on gun possession in the home “violates the Second Amendment, as does its prohibition against rendering any lawful fire arm in the home operable for the purposes of immediate self-defense,” Scalia wrote.

The landmark decision capped off a decades long debate between those who believed the Second Amendment protects an individual’s right to bear arms and those who argue it protects a right to possess and carry in connection with militia service.

Justice John Paul Stevens wrote a blistering dissent on behalf of the liberals on the Court worried about other gun laws.

“I fear that the District’s policy choice may well be just the first of an unknown number of dominoes to be knocked off the table,” he wrote.

Gun control advocates, dismayed at the ruling, took heart in Scalia’s words that “nothing in this opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.”

Since the ruling (and another case called McDonald v. City of Chicago) challenges to gun laws have popped up across the country. Many gun laws have been upheld, but just last week a federal appeals court in Chicago struck down an Illinois law banning the carrying of guns in public places.

Writing for a 2-1 majority, Judge Richard A. Posner referenced the Heller decision, which applied to guns at home, and applied it to his case regarding the right to carry guns in public places. Posner gave the Illinois legislature 180 days to “craft a new gun law that will impose reasonable limitations consistent with public safety.”

Posner reasoned, “a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower. ”

Illinois was the only state in the nation not to have some form of “conceal carry” law.

“I think the Supreme Court is likely to take up the issue, ” said Robert Cottrol of George Washington University Law School. He noted that the Illinois opinion seems at odds with an opinion in the 2nd Circuit Court of Appeals having to do with a New York law.

“One of the questions, it seems to me, is we don’t have a definitive statement in terms of Heller as to not only the right to keep arms, but the right to carry,” he said

Scalia, in his opinion in District of Columbia v. Heller, acknowledged that the Supreme Court had not fully addressed regulations.

“But since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field,” he said.

Lee Goodman, an organizer at the Stop Conceal Carry Coalition, group that supports the Illinois law, said he believes the federal court in Illinois got it wrong.

“Heller was the first decision ever in the country that decided that the Second Amendment allowed private citizens to keep guns in their homes for personal protection,” Goodman said. “Now, a federal appeals court has decided that people also have a right to carry guns in public. Judge Posner was just plain wrong, there is nothing in Heller that suggests the conclusion he reached.”

Goodman is urging Illinois Attorney General Lisa Madigan to appeal the decision.

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