NRA- McDonld v. Chicago "Handgun ownership is now legal and constitutionally protected everywhere in...

M c D o n a l D v . c h i c a g o

www.nranews.com July 2010

D I G I TA L

WINS OF CHANGE

In a historic decision, the u.s. Supreme Court rulesthat the Second Amendment

applies to all 50 states.

SPECIALD I G I TA L EDITION

S P E C I A L E D I T I O NI G I TA L • JUL10

WAYNE LAPIERREEXECUTIVE VICE PRESIDENT, NRA

“THIS IS A LANDMARK DECISION. THE SECOND AMENDMEVERY CITIZEN’S CONSTITUTIONAL RIGHT—IS NOW A ROF AMERICAN CONSTITUTIONAL LAW.”

A N A M E R I C A N V I C T O R Y

S P E C I A L E D I T I O Ni g i ta l • JUl10

Wayne lapierreexecutive vice president, nra

“This is a landmark decision. The second amendmenT—as every ciTizen’s consTiTuTional righT—is noW a real part of american constitutional laW.”

a n a m e r i c a n v i c t o r y

M c D o n a l D v . c h i c a g o

www.nranews.com July 2010

D I G I TA L

WINS OF CHANGE

In a historic 5-4 decision, the u.s. Supreme Court rulesthat the Second Amendment

applies to all 50 states.

SPECIALD I G I TA L EDITION


WINS OF CHANGE

iN M C D O N A L D V . C H I C A G O , tHE U .S . SUPREME COURt

RUlES tHat tHE SECOND aMENDMENt aPPl iES tO

EVERY laW-aBiDiNg CitiZEN iN EVERY CitY iN aMERiCa.


Wayne lapierreexecutive vice president, nra





McDonalD can be The sTarTing poinT—The firsT sTeps—in rescuing the people of our most anti-gun states from our Worst and most oppressive anti-gun laWs.

Victorious plaintiff otis mcdonald

Thomas concurred in the judgment but relied on the 14th Amendment’s Privileges or Immunities clause rather than the Due Process clause.

Accordingly, the court reversed the decision of the Seventh Circuit Court of Appeals, which had upheld the Chicago and Oak Park, Ill., handgun bans on the

theory that the Second Amendment only limits the federal government. “This decision makes absolutely clear that the Second Amendment

protects the God-given right of self-defense for all law abiding Americans, period,” said Chris W. Cox, nra-ila Executive Director. “Ironically, while crime in Chicago runs rampant and lawmakers there call on the National Guard for help, Mayor Daley has insisted on leaving the residents of his city defenseless. Today’s opinion puts the law back on the side of the law-abiding. We will be watching closely to make sure that Chicago abides by both the letter and the spirit of the Supreme Court’s decision.”

The case now goes back to the federal district court (the trial court) in Illinois. Realistically, the only thing the trial court can do with the case is issue an order formally striking down the Chicago and Oak Park bans.

The city of Chicago’s Corporation Counsel (the city’s legal department) has already told the Chicago police department to immediately start allowing Chicagoans to register handguns. Handgun ownership is now legal, and constitutionally protected, everywhere in the United States.

Four dissenting justices supported the handgun bans. Justice John Paul Stevens, who is retiring, wrote a dissenting opinion on his own. Justice Stephen Breyer wrote another dissent, which was joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.

All four of the dissenting justices made it clear that they are eager to overturn District of Columbia v. Heller, and thereby write the Second Amendment out of the Constitution. This means that Justice Sotomayor

was not exactly telling the whole story when she told the Senate last summer that she “accepted” the Heller decision and considered it to be “settled law” (See sidebar, next page).

Justice Alito’s opinion in the McDonald case is magnificent. It certainly shows that Justice Scalia, author of the Heller opinion, is not alone in his knowledge of the history of the Second Amendment.

Comment

Email the Editor

get involved


WINS OF CHANGE

iN M C D O N A L D V . C H I C A G O , tHE U .S . SUPREME COURt

RUlES tHat tHE SECOND aMENDMENt aPPl iES tO

EVERY laW-aBiDiNg CitiZEN iN EVERY CitY iN aMERiCa.

f i r e a r m f r e e d o m a r r i v e s i n t H e W i n d y c i t y

Victory!On June 28, decent, law-abiding

Americans saw their fundamental right to defend their homes and families upheld by the u.s. Supreme Court—a battle won in the still ongoing war for our Right to Keep and Bear Arms.

By a vote of 5-4, the Supreme Court in McDonald v. Chicago decided the Second Amendment, exactly like the majority of the Bill

of Rights, fully applies to every state and local government in the United States. “This is a landmark decision,” said nra Executive Vice President Wayne LaPierre.

“The Second Amendment—as every citizen’s constitutional right—is now a real part of American constitutional law. The nra will work to ensure this constitutional victory is not transformed into a practical defeat by activist judges, defiant city councils or cynical politicians who seek to pervert, reverse or nullify the Supreme Court’s McDonald decision through Byzantine labyrinths of restrictions and regulations that render the Second Amendment inaccessible, unaffordable or otherwise impossible to experience in a practical, reasonable way.”

Justice Samuel Alito wrote the opinion of the court, joined by Justices Antonin Scalia, Anthony Kennedy and Chief Justice John Roberts. The court held that the Second Amendment applies to the states through the 14th Amendment. Justice Clarence

b y

D a v e K o p e l


The ciTy of chicago’s corporaTion counsel (legal deparTmenT) has already Told The chicago police deparTmenT to immediately start alloWing cHicagoans to register Handguns.

cHicago mayor ricHard daley



It didn’t take long after the McDonald decision was announced by the u.s. Supreme Court

before spokesmen for gun-ban organizations began doing the two things they do best—claiming victory in the depths of defeat, while at the same time warning of the carnage to come!

Paul Helmke, president of the so-called Brady Campaign to Prevent Gun Violence, declared it a major victory for gun banners.

“We can expect two things as a result of today’s decision by the u.s. Supreme Court in McDonald v. Chicago: the gun lobby and gun criminals will use it to try to strike down gun laws, and those legal challenges will continue to fail,” Helmke said, in trying to put a positive spin on the enormous blow the court dealt to gun-ban groups. “We are pleased that the court reaffirmed

O f A n t i - G u n n e r s & L i e s

PAuL HeLmkesuPreme COurt JUne 28, 2010

A n A m e r i C A n V i C t O r Y

Thomas concurred in the judgment but relied on the 14th Amendment’s Privileges or Immunities clause rather than the Due Process clause.

Accordingly, the court reversed the decision of the Seventh Circuit Court of Appeals, which had upheld the Chicago and Oak Park, Ill., handgun bans on the

theory that the Second Amendment only limits the federal government. “This decision makes absolutely clear that the Second Amendment

protects the God-given right of self-defense for all law abiding Americans, period,” said Chris W. Cox, nra-ila Executive Director. “Ironically, while crime in Chicago runs rampant and lawmakers there call on the National Guard for help, Mayor Daley has insisted on leaving the residents of his city defenseless. Today’s opinion puts the law back on the side of the law-abiding. We will be watching closely to make sure that Chicago abides by both the letter and the spirit of the Supreme Court’s decision.”

The case now goes back to the federal district court (the trial court) in Illinois. Realistically, the only thing the trial court can do with the case is issue an order formally striking down the Chicago and Oak Park bans.

The city of Chicago’s Corporation Counsel (the city’s legal department) has already told the Chicago police department to immediately start allowing Chicagoans to register handguns. Handgun ownership is now legal, and constitutionally protected, everywhere in the United States.

Four dissenting justices supported the handgun bans. Justice John Paul Stevens, who is retiring, wrote a dissenting opinion on his own. Justice Stephen Breyer wrote another dissent, which was joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.

All four of the dissenting justices made it clear that they are eager to overturn District of Columbia v. Heller, and thereby write the Second Amendment out of the Constitution. This means that Justice Sotomayor

was not exactly telling the whole story when she told the Senate last summer that she “accepted” the Heller decision and considered it to be “settled law” (See sidebar, next page).

Justice Alito’s opinion in the McDonald case is magnificent. It certainly shows that Justice Scalia, author of the Heller opinion, is not alone in his knowledge of the history of the Second Amendment.

Comment

Email the Editor

get involved


When the Senate was considering the Supreme Court

nomination of Sonia Sotomayor last summer, she repeatedly testified to the Judiciary Committee that she

considered Heller to be “settled law.”

I guess that depends what the meaning of “settled” is. Justice Sotomayor joined the Breyer dissent, which

claimed that Heller was wrongly decided, and which declared, “In sum, the Framers did not write the Second Amendment in order to protect a private right of armed self defense.”

In retrospect, the nra was clearly right to oppose her nomination.

Justice Sotomayor’s role in McDonald cannot be squared with the assurances that she gave the Senate last year.

Her disappointing behavior highlights the importance of senators closely scrutinizing Supreme Court nominee Elena Kagan.

I will be testifying to the Senate about the Kagan nomination on July 1 or 2. My written testimony will be available on my website, www.davekopel.org, on June 30.

Dave Kopel

s o t o m a y o r ’ s “ s e t t l e d l a W ”


Comment

Email the Editor

get involved

Near the beginning of the opinion, he observed the results of the Chicago handgun ban: “the City’s handgun murder rate has actually increased since the ban was enacted,” and “Chicago residents now face one of the highest murder rates in the country and rates of other violent crimes that exceed the average in comparable cities.”

The court’s sources for these facts were amicus briefs from the Heartland Institute (a think tank in Chicago), the Buckeye Institute (a think tank in Ohio) and my amicus brief filed on behalf of the International Law Enforcement

Educators and Trainers Association (ileeta). Also joining the ileeta brief were other law enforcement organizations, scholars, the Congress on Racial Equality and the Independence Institute (the Colorado think tank where I work).

Justice Alito pointed to the very real self-defense needs of Chicagoans. For example, the lead plaintiff, “Otis McDonald, who is in his late seventies, lives in a high-crime neighborhood. He is a community activist involved with alternative policing strategies, and his efforts to improve his neighborhood have subjected him to violent threats from drug dealers.”

Next, the opinion provided a detailed history of the legal application of the Bill of Rights to the states. To make a long story short, before the Civil War, most courts viewed the Bill of Rights as a restraint only on the federal government. Because of the problems that had resulted, in 1866 Congress proposed the 14th Amendment, which was ratified by the states.

According to the 14th Amendment, “No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States.” A huge body of historical evidence shows that this clause was meant to make all of the first eight amendments enforceable against the states.

However, a majority of the Supreme Court essentially nullified the Privileges or

considered Heller to be “settled law.”

I guess that depends what the meaning of “settled” is. Justice Sotomayor joined the Breyer dissent, which

claimed that Heller was wrongly decided, and which declared, “In sum, the Framers did not write the Second Amendment in order to protect a private right of armed self defense.”

In retrospect, the nra was clearly right to oppose her nomination.

Justice Sotomayor’s role in McDonald cannot be squared with the assurances that she gave the Senate last year.

Her disappointing behavior highlights the importance of senators closely scrutinizing Supreme Court nominee Elena Kagan.

I will be testifying to the Senate about the Kagan nomination on July 1 or 2. My written testimony will be available on my website, www.davekopel.org, on June 30.

Dave Kopel


u.s. supreme court justice samuel alito


Comment

Email the Editor

get involved

Immunities clause. The court started to do so by a 5-4 vote in an 1873 decision, the Slaughterhouse Cases. The court then finished the job of destroying the Privileges or Immunities clause in the 1875 case United States v. Cruikshank. That case ruled that the Second Amendment and the First Amendment right of assembly were not covered by the Privileges or Immunities clause.

The 1886 case of Presser v. Illinois (a statewide ban on armed parades) and the 1894 case of Miller v. Texas (involving a white man who was violently attacked by the police because he was having a romantic relationship with a black woman) affirmed that the Second Amendment, like all of the Bill of Rights, was not protected by the Privileges or Immunities clause.

Starting in 1897, the Supreme Court began implementing a new approach to the 14th Amendment, while being careful not to overrule the Privileges or Immunities precedents. The court turned to another clause of the amendment: “nor shall any State deprive any person of life, liberty, or property, without due process of law.” In American law, the concept of “due process” had always been considered to have some substantive content, so as to prohibit some kinds of outrageous government actions, even if the government followed appropriate

procedures. For example, if a legislature enacted a law that, after appropriate public hearings, debate, and so on, said “We take a’s property and give it to b,” the law would violate Due Process.

So the Supreme Court began “selective incorporation” of particular parts of the Bill of Rights. Once “incorporated” into the 14th Amendment through Due Process, the particular part of the Bill of Rights then applied to the states. Since local governments get all their powers from the state, any right that is incorporated against the states must also be obeyed by local governments.

By the late 1960s, the court had selectively incorporated almost all of the Bill of Rights—except for the Fifth Amendment right to grand jury indictment, the Third Amendment (quartering soldiers in the home), the Seventh Amendment right to jury trials in civil (non-criminal) cases and the Eighth Amendment’s

“cHicago residents noW face one of tHe HigHest murder rates in tHe country and raTes of oTher violenT crimes ThaT exceed The average in comparable ciTies.”






o f a n t i - g u n n e r s & l i e s

paul Helmkesupreme court JUNE 28, 2010


Comment

Email the Editor

get involved





its language in District of Columbia v. Heller that the Second Amendment individual right to possess guns in the home for self-defense does not prevent our elected representatives from enacting common-sense gun laws to protect our communities from gun violence.”

For her part, Kristen Rand at the Violence Policy Center took the opposite tack—the time-tested, but always wrong, “blood in the streets” claim.

“People will die because of this decision,” Rand said. “It is a victory only for the gun lobby and America’s fading firearm industry.

“The inevitable tide of frivolous pro-gun litigation destined to follow will force cities, counties and states to expend scarce resources to defend longstanding, effective public safety laws. The gun lobby and gun makers are seeking nothing less than the complete dismantling of our nation’s gun laws in a cynical effort to try and stem the long-term drop in gun ownership and save the dwindling gun industry.”

Of course, Rand’s fantasy of a long-term drop in gun ownership is nothing more than an outright lie. And recent fbi reports indicate that with more guns in the hands of law-abiding citizens than ever before, violent crime rates continue to fall to all-time lows.

Mark Chesnut, Editor


nra was represenTed in McDonalD by a sTellar legal Team including former u.s. soliciTor general paul clement of king & spalding llp, aTTorney and second amendmenT hisTorian stepHen Halbrook and aTTorney stepHen d. poss of goodwin procTer llp.


paul clement

stepHen Halbrook

stepHen d. poss

Comment

Email the Editor

get involved

prohibition on excessive fines. And of course the court had never addressed the question of whether the Second Amendment is incorporated through the Due Process clause.

In the McDonald briefing, nra primarily urged the court to incorporate via Due Process. Alan Gura, attorney for Otis McDonald, focused on asking the court to overturn Slaughterhouse and to incorporate via Privileges or Immunities.

(In the Seventh Circuit Court of Appeals, the case of McDonald v. Chicago had been consolidated with the parallel cases of nra v. Chicago and nra v. Oak Park. The Supreme Court granted certiorari in the McDonald case only, but made nra and Oak Park parties to the case.)

Justices Alito, Roberts, Scalia and Kennedy declined to overturn the old Privileges or Immunities precedents, instead following more than a century of Due Process precedents that provide a road map for incorporation.

Under the modern test for incorporation, the court explained, the questions are “whether the right to keep and bear arms is fundamental to our [American] scheme of ordered liberty” and “whether this right is ‘deeply rooted in this Nation’s history and tradition.’”

“Self-defense is a basic right,” wrote Justice Alito. And (quoting from Heller), the “inherent right of self-defense has been central to the Second Amendment right.” He explained that Heller had protected the right to own handguns because handguns are “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family.”

Further, the court detailed how Heller’s analysis of the history of the right to arms—from its English roots up to the present—made it clear that the right to arms is “deeply rooted in this Nation’s history and tradition.”

By the 1850s, “the perceived threat that had prompted the inclusion of the Second Amendment in the Bill of Rights—the fear that the national government would disarm the universal militia—had largely faded as a popular concern,

but the right to keep and bear arms was highly valued for purposes of self-defense.”

For example, the disarming of free soil Kansas settlers by the pro-slavery territorial government was considered a national outrage. After the Civil War, some southern states tried to keep the freedmen in de facto servitude by enacting “Black Codes” which forbade them exercising constitutional rights, including the right to own and carry

nra was represenTed in McDonalD by a sTellar legal Team including former u.s. soliciTor general paul clement of king & spalding llp, aTTorney and second amendmenT hisTorian stepHen Halbrook and aTTorney stepHen d. poss of goodwin procTer llp.


Of all the so-called “mainstream” media outlets that took shots at the Supreme

Court’s decision in McDonald v. Chicago, none did so with such venom—and with such lack of facts—as the failing New York Times.

Times editorial writers began their next-day editorial with huge lies, and never let down from that point on.

“This began two years ago, when the Supreme Court disregarded the plain words of the Second Amendment and overturned the District of Columbia’s handgun ban, deciding that the amendment gave individuals in the district, not just militias, the right to bear arms,” the Times bemoaned, proving their ignorance of the Second Amendment. “Proceeding from that flawed logic, the court has now said the amendment applies to all states and cities, rendering Chicago’s ban on handgun ownership unenforceable.”

The Times continued by further showing the editorial

writers’ lack of knowledge on the topic: “Once again, the court’s conservative majority imposed its selective reading of American history, citing the country’s violent separation from Britain and the battles over slavery as proof that the authors of the Constitution and its later amendments considered gun ownership a fundamental right.”

Never missing a chance to take a potshot at the nra, the editorial concluded: “They should not be intimidated by the theoretical debate that has now concluded at the court or the relentless stream of lawsuits sure to follow from the gun lobby that will undoubtedly keep pressing to overturn any and all restrictions. Officials will have to press back even harder. Too many lives are at stake.”

Indeed, too many lives are at stake. And now that the decision has been rendered and lawsuits promised against punitive gun bans, many lives will undoubtedly be saved, not lost.


t a k i n g

b i t t e r t o

a n e W l e v e l


Comment

Email the Editor

get involved

anti-establishment rule binding on the states.Chicago and Oak Park had asserted that the Second Amendment should

be treated like a second-class right because guns are dangerous. But every criminal procedure protection (such as the ban on coerced confessions) sometimes means that dangerous criminals go free, Justice Alito retorted. Yet the court has never “refrained from holding that a provision of the Bill of Rights is binding on the States on the ground that the right at issue has disputed public safety implications.”

As a fallback argument, some of the anti-gun amici had urged that the court incorporate only a weak version of the Second Amendment. During the 1940s and 1950s, the court had taken such an approach on some provisions of the Bill of Rights—such as making applicable to the states only a weak version of the Fourth Amendment protections against unreasonable or warrantless searches and seizures. However, Justice Alito pointed out that partial incorporation has been rejected since the 1960s, and the court has never wavered since then.

So the Second Amendment that now applies to the states is the full-strength Second Amendment.

That does not mean every gun control law will be found unconstitutional. McDonald reaffirmed the Heller court’s comment suggesting that bans on gun carrying in “sensitive places” (such as schools or government buildings), laws against gun possession by convicted felons or the mentally ill and “laws imposing conditions and qualifications on the commercial sale of arms” would all be constitutional. So despite Chicago’s and Oak Park’s “doomsday proclamations, incorporation does not imperil every law regulating firearms.”

Finally, the Alito opinion addressed some arguments from Justice Breyer’s dissent. Breyer claimed that “there is no popular consensus” that the Second Amendment right is fundamental. Alito replied that the Supreme Court has never demanded that there be a “popular consensus” in order for a right to incorporated. Moreover, there is a consensus in this case: “An amicus brief from 58 members of the Senate and 251 members of the House of Representatives urges us to hold that the right to keep and bear arms is fundamental”—as did an amicus brief of 38 states, filed by the state attorneys general.

Breyer asserted that the Second Amendment does not deserve incorporation because it does not help minorities and persons lacking political clout. Not so, answered Alito: “If, as petitioners believe, their safety and the safety of other law-abiding members of the community would be enhanced by the possession

Comment

Email the Editor

get involved

guns. Marauding gangs of white racists, including the Ku Klux Klan, confiscated firearms from the freedmen—leaving them defenseless against further acts of terrorism.

In 1866, the Reconstruction Congress struck back with the Freedmen’s Bureau Act, the Civil Rights Act and the 14th Amendment—every one of them explicitly aimed at safeguarding the freedmen’s right to own guns for self-defense.

The court refuted the Chicago and Oak Park arguments one by one: Congress could not have intended to allow gun bans if they were applied equally to all races. That would have meant that the southern white supporters of civil rights could have been disarmed, just like the white abolitionists in Kansas had been.

Congress was not interested in protecting militia rights. It was the southern state militias that were perpetrating some of the worst violence against the freedmen. Indeed, Congress disbanded the southern state militias, while respecting the Second Amendment by allowing the militiamen to keep their own guns.

Nor did the court think much of the argument that Chicago and Oak Park should be allowed to ban handguns because England bans handguns, Luxembourg bans all guns, and some other democracies,

such as Denmark, have repressive gun laws. Justice Alito pointed out that many American constitutional protections are unique to our nation—such as the widespread availability of jury trials, the Miranda rule or the ban on courtroom use of evidence that the police seize illegally. Likewise, many nations, such as England and Denmark, have established churches, but the First Amendment forbids the establishment of religion by the Congress, and the 14th Amendment makes the

writers’ lack of knowledge on the topic: “Once again, the court’s conservative majority imposed its selective reading of American history, citing the country’s violent separation from Britain and the battles over slavery as proof that the authors of the Constitution and its later amendments considered gun ownership a fundamental right.”

Never missing a chance to take a potshot at the nra, the editorial concluded: “They should not be intimidated by the theoretical debate that has now concluded at the court or the relentless stream of lawsuits sure to follow from the gun lobby that will undoubtedly keep pressing to overturn any and all restrictions. Officials will have to press back even harder. Too many lives are at stake.”

Indeed, too many lives are at stake. And now that the decision has been rendered and lawsuits promised against punitive gun bans, many lives will undoubtedly be saved, not lost.


“ironically, while crime in chicago runs rampanT and lawmakers There call on The naTional guard for help, mayor daley Has insisted on leaving tHe residents of His city defenseless.”

cHris W. cox, executive director, nra institute for legislative action


u.s. supreme court justicesamuel alito

nor did The courT Think much of The argumenT ThaT chicago and oak park should be allowed To ban handguns because england bans Handguns, luxembourg bans all guns, and some otHer democracies, sucH as denmark, Have repressive gun laWs.


Comment

Email the Editor

get involved

anti-establishment rule binding on the states.Chicago and Oak Park had asserted that the Second Amendment should

be treated like a second-class right because guns are dangerous. But every criminal procedure protection (such as the ban on coerced confessions) sometimes means that dangerous criminals go free, Justice Alito retorted. Yet the court has never “refrained from holding that a provision of the Bill of Rights is binding on the States on the ground that the right at issue has disputed public safety implications.”

As a fallback argument, some of the anti-gun amici had urged that the court incorporate only a weak version of the Second Amendment. During the 1940s and 1950s, the court had taken such an approach on some provisions of the Bill of Rights—such as making applicable to the states only a weak version of the Fourth Amendment protections against unreasonable or warrantless searches and seizures. However, Justice Alito pointed out that partial incorporation has been rejected since the 1960s, and the court has never wavered since then.

So the Second Amendment that now applies to the states is the full-strength Second Amendment.

That does not mean every gun control law is unconstitutional. McDonald reaffirmed the Heller court’s comment suggesting that bans on gun carrying in “sensitive places” (such as schools or government buildings), laws against gun possession by convicted felons or the mentally ill and “laws imposing conditions and qualifications on the commercial sale of arms” would all be constitutional. So despite Chicago’s and Oak Park’s “doomsday proclamations, incorporation does not imperil every law regulating firearms.”

Finally, the Alito opinion addressed some arguments from Justice Breyer’s dissent. Breyer claimed that “there is no popular consensus” that the Second Amendment right is fundamental. Alito replied that the Supreme Court has never demanded that there be a “popular consensus” in order for a right to incorporated. Moreover, there is a consensus in this case: “An amicus brief from 58 members of the Senate and 251 members of the House of Representatives urges us to hold that the right to keep and bear arms is fundamental”—as did an amicus brief of 38 states, filed by the state attorneys general.

Breyer asserted that the Second Amendment does not deserve incorporation because it does not help minorities and persons lacking political clout. Not so, answered Alito: “If, as petitioners believe, their safety and the safety of other law-abiding members of the community would be enhanced by the possession


A s gun-ban proponents trotted out argument after argument against the Supreme

Court’s McDonald decision, economist and researcher John Lott sees the decision in a different light—one that will make us all safer.

“Predictably, gun control advocates bemoaned the ruling,” Lott, author of “More Guns, Less Crime,” wrote in a post-announcement op-ed. “But the court’s decision is not just correct on constitutional grounds. It will help make the country safer.”

Lott pointed out that after the Supreme Court’s ruling in the Heller case pertaining to d.c., Chicago’s mayor, Richard Daley, called it “a very frightening decision,” and said that governments have “a compelling interest in reducing crime related to firearms.”

Yet, as Lott points out, d.c.’s murder and violent crime rates plummeted after the court’s decision to overturn

that city’s gun ban and mandatory gunlock requirements. Comparing crimes committed in d.c. from January through May 2010 to the same five months of 2008 shows 31 fewer murders—a 43 percent drop. During that same time period, Chicago, which had a gun ban in place, saw its murders drop by only five percent.

Lott also pointed out that Chicago’s gun ban led directly to an increase in violent crime when instituted.

“Before the ban, Chicago’s murder rate was falling relative to other large cities, nearby counties and the u.s. as a whole,” Lott said. “After the ban, however, Chicago’s murder rate rose relative to all these other places. For example, if you compare murder rates among the 50 most populous cities, Chicago’s murder rate went from equaling the average for the other cities in 1982 to exceeding it by 32 percent in 1992 and by 68 percent in 2002.”


m a k i n g o u r c o u n t r y s a f e r


joHn lott, author

Comment

Email the Editor

get involved

of handguns in the home for self-defense, then the Second Amendment right protects the rights of minorities and other residents of high-crime areas whose needs are not being met by elected public officials.”

That’s especially true in Chicago, where the number of Americans killed is higher than the number of Americans killed in Iraq and Afghanistan combined during comparable periods.

Justice Breyer also worried that incorporation would burden courts with having to make cost-benefit analyses of various gun control laws. It was Breyer himself in Heller who wanted to subject the Second Amendment to an interest balancing test, and the Heller majority rejected that completely. Alito quoted Heller: “The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.”

The fifth vote against the Chicago handgun ban came from Justice Thomas. His concurring opinion focused on the original meaning of the Privileges or

Immunities clause.He quoted copiously from the

congressional debates on the 14th Amendment, showing that it was widely understood that the Privileges or Immunities clause would make all of the first eight amendments, including the Second Amendment, applicable to the states.

Section Five of the 14th Amendment grants Congress power to enforce the amendment by appropriate legislation. Justice Thomas showed that early congressional exercises of this power explicitly aimed to protect defensive arms under the banner of Privileges or Immunities.

He detailed the long and sorry history of southern laws against gun ownership by free blacks—both before and after the Civil War. The

that city’s gun ban and mandatory gunlock requirements. Comparing crimes committed in d.c. from January through May 2010 to the same five months of 2008 shows 31 fewer murders—a 43 percent drop. During that same time period, Chicago, which had a gun ban in place, saw its murders drop by only five percent.

Lott also pointed out that Chicago’s gun ban led directly to an increase in violent crime when instituted.

“Before the ban, Chicago’s murder rate was falling relative to other large cities, nearby counties and the u.s. as a whole,” Lott said. “After the ban, however, Chicago’s murder rate rose relative to all these other places. For example, if you compare murder rates among the 50 most populous cities, Chicago’s murder rate went from equaling the average for the other cities in 1982 to exceeding it by 32 percent in 1992 and by 68 percent in 2002.”



thought of black people owning guns terrified many whites. As anti-slavery Rep. Thaddeus Stevens, r-Penn., had put it: “When it was first proposed to free the slaves, and arm the blacks, did not half the nation tremble? The prim conservatives, the snobs, and the male waiting-maids in Congress, were in hysterics.”

Cruikshank should be overruled, wrote Justice Thomas. It was wrong as a matter of law, and it led to horrible consequences: “Without federal enforcement of the inalienable right to keep and bear arms, these militias and mobs were tragically successful in waging a campaign of terror against the very people the 14th Amendment had just made citizens.” Gangs of white terrorists, including the Ku Klux Klan,

practiced rape, murder, lynching and robbery against the disarmed blacks.

Among the murderers was Ben “Pitchfork” Tillman, who bragged about leading a massacre of South Carolina blacks on July 4, 1876. (Tillman was later elected to the u.s. Senate from South Carolina. He is the father of federal laws restricting campaign donations through the 1907 Tillman Act, which is still in effect.)

So, wrote Justice Thomas, “The use of firearms for self-defense was often the only way black citizens could protect themselves from mob violence.” Like the framers of the Second Amendment, the framers of the 14th Amendment recognized that “the right to keep and bear arms was essential to the preservation of liberty.”


“when iT was firsT proposed To free The slaves, and arm The blacks, did noT half The naTion Tremble? tHe prim conservatives, tHe snobs, and tHe male Waiting-maids in congress, Were in Hysterics.”

Comment

Email the Editor

get involved

The Thomas concurrence and Alito opinion both tell the history of the racist roots of gun control—a story that has been told in this magazine and other nra publications for decades. Now, thanks to McDonald, every law student will learn this history.

Both are replete with citations to great Second Amendment scholars such as David Hardy, Clayton Cramer and Robert Cottrol, along with the original sources those writers presented in their articles and Supreme Court briefs.

The most prominent scholar of all is Stephen Halbrook, who is cited five times. At least some of the justices and their clerks seem to have read Halbrook’s briefs and his book on the 14th Amendment carefully and have gleaned many original sources from those writings.

In the honor roll of scholars who have safeguarded the Second Amendment, Halbrook ranks first on the list. When he began writing about the Second Amendment in the late 1970s, the history of the Second Amendment had been forgotten. The Second Amendment was jeered by academics and treated with contempt by the courts.

Thanks, however, in significant part to the tremendous scholarly research by Halbrook on the original meaning of the Second and 14th Amendments, the Second Amendment now occupies its proper position in American law: a fundamental protection of individual rights that must be respected by every level of government in the United States.

The dissenting opinion by Justice Stevens argued that the court’s whole approach to incorporation should be scrapped, and that, in essence, justices should be free to make the 14th Amendment mean whatever they want, based on their own values. While he put it a bit more elegantly, that was the bottom line.

Justice Scalia wrote a concurrence explaining why the Stevens approach was lawless and internally inconsistent. Scalia argued that reliance on original intent, while having flaws of its own, was far superior to the unbounded willfulness favored by Stevens. Scalia derided Stevens for wanting to give “We The Court” uncontrolled power over “They The People’s” decisions.

Under the Stevens approach, wrote Scalia, “whatever the Constitution and laws may say, the list of protected rights will be whatever courts wish it to be.” To Justice Scalia, this is simply “usurpation.”

Justice Stevens acknowledged that many Americans own firearms because they believe in “the supreme human dignity of being master of one’s fate rather than



McDonalD v. chicago is noT The end of our sTruggle To preserve The second amendmenT. iT is merely The end of The beginning. the battles against infringements of second amendment rights Will continue to be Waged mainly in the legislatures and in the polling booths.

otis mcdonald on the steps of the u.s. supreme court

The nra is dedicated to keeping our members informed about developments that affect gun owners. This timely special edition of America’s 1st Freedom Digital is only the latest way nra uses digital publishing to arm our members with the most up-to-date news and info about their Second Amendment rights.

Every month, America’s 1st Freedom Digital (a1fd) features hundreds of videos and hyperlinks with expanded content. Readers can also share a1fd through dozens of social media outlets and e-mail

comments to elected officials. And a1fd has been redesigned for the Web with bigger type, more pages, animations, audio effects, slideshows and galleries, enhanced navigation tools and zoom/search capabilities.

To ensure that you receive the very latest news on events that affect your Second Amendment rights, click here to add America’s 1st Freedom Digital to your current nra magazine service each month.

Arm yourself for the fight for firearm freedom with the tools of the digital age.

Official Journal of the National Rifle Association

VIDEOS HYPERLINKS PRODUCT LINKS MUSIC

SOUND DESIGN LEGISLATOR CONTACTS BIGGER TYPE a

ZOOM SPECIAL EDITIONS SOCIAL MEDIA

EMAIL INTERACTIVE

T H E D A W N O F T H E

www.nranews.com August 2010

Jump into the BIT

STREAM!

I N F O R M A T I O N I S P O W E R

Comment

Email the Editor

get involved

of ways: By electing the presidents who appointed the five pro-Second Amendment justices and the senators who confirmed them. By winning victories in state legislatures and city councils so that the United States never developed a tradition of handgun bans being anything other than unusual and rare. By keeping the right to arms and the right to self-defense alive and vibrant in the hearts and minds of the American people, so that the majority justices could see that the Second Amendment is just as important to the American people today as it was in 1866 or 1791.

As long as Second Amendment activists stay active, McDonald can be the starting point—the first steps—in rescuing the people of our most anti-gun states from our worst and most oppressive anti-gun laws. In the long run, McDonald will help raise awareness of gun owners’ rights among the public, leading to legislators and courts being more protective of rights, and thereby increasing public awareness even further.

We have come a long way from 1983, when the new Chicago handgun ban was hailed as the first big step towards using the d.c. handgun ban as a model for nationwide prohibition.

June 28, 2010, will go down in history as a great day for American liberty.

McDonalD v. chicago is noT The end of our sTruggle To preserve The second amendmenT. iT is merely The end of The beginning. the battles against infringements of second amendment rights Will continue to be Waged mainly in the legislatures and in the polling booths.

otis mcdonald on the steps of the u.s. supreme court

Your nra is dedicated to keeping you informed about developments that affect gun owners. This timely special edition of America’s 1st Freedom Digital is only the latest way nra uses digital publishing to arm our members with the most up-to-date news and info about their Second Amendment rights.

Every month, America’s 1st Freedom Digital (a1fd) features hundreds of videos and hyperlinks with expanded content. You can also share a1fd through dozens of social media outlets and email your

comments to your elected officials. And a1fd has been redesigned for the Web with bigger type, more pages, animations, audio effects, slideshows and galleries, enhanced navigation tools and zoom/search capabilities.

To ensure that you receive the very latest news on events that affect your Second Amendment rights, click here to add America’s 1st Freedom Digital to your current nra magazine service each month.

Arm yourself for the fight for firearm freedom with the tools of the digital age.

Official Journal of the National Rifle Association

VIDEOS HYPERLINKS PRODUCT LINKS MUSIC

SOUND DESIGN LEGISLATOR CONTACTS BIGGER TYPE a

ZOOM SPECIAL EDITIONS SOCIAL MEDIA

EMAIL INTERACTIVE

T H E D A W N O F T H E

www.nranews.com August 2010

Jump into the BIT

STREAM!

I N F O R M A T I O N I S P O W E R


u.S. Supreme court juStice antonin scalia

scalia derided sTevens for wanTing To give “we The courT” uncontrolled poWer over “tHey tHe people’s” decisions.


Comment

Email the Editor

get involved

a ward of the State.” He added: “Members of my generation, at least, will recall the many passionate statements of this view made by the distinguished actor, Charlton Heston.”

However, Stevens argued that self-determination was outweighed by the dangers of handguns: they are often used in crime, and thereby harm the liberty of crime victims; because of the particular dangers of people carrying handguns, a legislature could ban possession in the home, as a “prophylactic” measure. Moreover, “it does not appear to be the case that the ability to own a handgun, or any particular type of firearm, is critical to leading a life of autonomy, dignity, or political equality: The marketplace offers many tools for self-defense, even if they are imperfect substitutes. …”

Needless to say, Justice Stevens hardly addressed the mountain of evidence presented by Justices Alito and Thomas that for free blacks and their white allies in the South, firearms were essential to autonomy and political equality. To defend one’s family against a mob of Klansmen, the “marketplace” offered no effective substitute for a firearm.

Relying on historically inaccurate articles by writers such as Saul Cornell, Stevens asserted that there was a long history of gun bans and repressive gun controls in America. He claimed that this history of severe regulation proved that the right to arms was not fundamental.

As for the brief filed by the 38 state attorneys general, Justice Stevens found it “puzzling that so many state lawmakers have asked us to limit their option to regulate a dangerous item.”

Here’s that puzzle’s solution: almost all state attorneys general are elected by the people. They must be responsive to the people’s wishes on important constitutional matters. The American people, along with most of the attorneys general whom they have elected, consider it very dangerous to allow any government the option of depriving law-abiding citizens of the best means of self-defense.

The Breyer dissent, joined by Justices Ginsburg and Sotomayor, began by arguing that Heller had been wrongly decided. Then, conceding for purposes of argument that there is a right under Heller to own firearms for self-defense, Breyer contended that the right is not fundamental and should not be incorporated by the 14th Amendment.

First of all, Breyer wrote, there is a political debate about gun control, and much disagreement about it. True enough, but if that’s the rule, then nothing would ever


be incorporated. Indeed, public opinion polling shows that many of the unenumerated rights that the court has found to exist and that Justice Breyer so zealously defends have far less public support than does the Second Amendment.

Second, “We are aware of no argument that gun-control regulations target or are passed with the purpose of targeting ‘discrete and insular minorities.’”

Yet Justice Alito’s opinion specifically cited some of the amicus briefs in McDonald and Heller that showed that not only in 1865, but sometimes today, gun control laws are aimed at racial minorities, or are enforced in a discriminatory way against women, racial minorities or sexual minorities.

Further, “the private self-defense right does not significantly seek to protect individuals who might otherwise suffer unfair or inhumane treatment at the hands of a majority.” How about Otis McDonald? The city of Chicago government, which theoretically represents “the majority,” denied him effective police protection, but refused to allow him the appropriate means of protecting himself against the violent criminals who were threatening to kill him. That certainly seems unfair and inhumane.

The u.s. Supreme Court’s opinion in the McDonald case was barely public before Chicago Mayor Richard Daley declared Chicago was trying to find ways around the

decision to keep his residents disarmed and vulnerable to violent criminals.At an afternoon press conference, Daley said the city would have in place a new ordinance

aimed at making it difficult to purchase and own a gun in Chicago. “We’ll publicly propose a new ordinance very soon,” Daley said. “As a city we must continue to

stand up … and fight for a ban on assault weapons … as well as a crackdown on gun shops.“We are a country of laws, not a nation of guns.”Of course, the McDonald decision dealt only with the city’s handgun ban. And it was the law of

the land that was explored, and then decided, by the court.Mark Chesnut, Editor

d a l e y ’ s d e f i a n c e o f t H e u . s . s u p r e m e c o u r t

cHicago mayor ricHard daley


Comment

Email the Editor

get involved

Justice Breyer predicted that incorporation would mean that judges would have to answer questions such as:

“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 pat downs 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?”

He is right that courts will have to answer those questions, but they are no more difficult to answer than the myriad questions that the courts have

The u.s. Supreme Court’s opinion in the McDonald case was barely public before Chicago Mayor Richard Daley declared Chicago was trying to find ways around the

decision to keep his residents disarmed and vulnerable to violent criminals.At an afternoon press conference, Daley said the city would have in place a new ordinance

aimed at making it difficult to purchase and own a gun in Chicago. “We’ll publicly propose a new ordinance very soon,” Daley said. “As a city we must continue to

stand up … and fight for a ban on assault weapons … as well as a crackdown on gun shops.“We are a country of laws, not a nation of guns.”Of course, the McDonald decision dealt only with the city’s handgun ban. And it was the law of

the land that was explored, and then decided, by the court.Mark Chesnut, Editor

d a l e y ’ s d e f i a n c e o f t H e u . s . s u p r e m e c o u r t


u.s. supreme court justice stepHen breyer

he (breyer) ciTed a Toledo law for an example of a currenT handgun ban. in facT, The Toledo law banned only handguns ThaT failed a safeTy TesT. moreover, tHe laW Was eliminated in 2007 by a preemption statute enacted by tHe oHio legislature.


Comment

Email the Editor

get involved

answered in creating doctrines for the First Amendment and for many other fields of constitutional law.

Much of the Breyer dissent consisted of a catalogue of past and present gun controls, from which Justice Breyer concluded that any right that has been subject to so much control must not be fundamental. Some of the items in his litany of controls do not support his theory.

He cited early American cases upholding concealed-carry bans—yet those courts said that concealed-carry bans were all right only because the right to carry was preserved by the allowance of open carry.

He pointed to an 1876 Wyoming law against carrying guns in town, along with an 1871 Texas law against carrying handguns except in response to an immediate threat, as examples of laws that “largely banned the possession of all nonmilitary handguns.” Not so. Wyoming and Texas seriously restricted handgun carrying, without imposing any restrictions on what kinds of handguns could be possessed.

He cited a Toledo law for an example of a current handgun ban. In fact, the Toledo law banned only handguns that failed a safety test. Moreover, the law was eliminated in 2007 by a preemption statute enacted by the Ohio legislature.

As for handgun bans, Breyer asked, “Which state courts have struck them down?” That’s a tough question, since the only recent handgun bans that stayed on the books very long were those in d.c., in Chicago and in a few of Chicago’s suburbs. San Francisco twice tried a ban, but it was quickly declared void each time on the basis of a state preemption law. And there’s one more: In the 1846 case of Nunn v. State, the unanimous Georgia Supreme Court relied on the Second Amendment to strike down a handgun ban. (Justice Thomas’s concurrence cited Nunn as an example of the minority of antebellum cases that considered the Bill of Rights applicable to the states.)

McDonald v. Chicago is not the end of our struggle to preserve our Second Amendment. It’s merely the end of the beginning. The battles against infringements of Second Amendment rights will continue to be waged mainly in the legislatures and in the polling booths.

Ominously, the dissenting opinions in McDonald made it clear that there are four Supreme Court justices who would overturn Heller and McDonald at the first opportunity. And if President Obama gets to appoint the replacement for any of the five pro-rights justices, that opportunity will come all too soon.

Pro-rights civic activism made the McDonald victory possible in a number



McDonalD can be The sTarTing poinT for a brighT new era for The second amendmenT, and for The firsT sTeps in rescuing tHe people of our most anti-gun states from our Worst and most oppressive anti-gun laWs.

VictoriouS plaintiff otis mcdonald

Comment

Email the Editor

get involved

of ways: By electing the presidents who appointed the five pro-Second Amendment justices and the senators who confirmed them. By winning victories in state legislatures and city councils so that the United States never developed a tradition of handgun bans being anything other than unusual and rare. By keeping the right to arms and the right to self-defense alive and vibrant in the hearts and minds of the American people, so that the majority justices could see that the Second Amendment is just as important to the American people today as it was in 1866 or 1791.

As long as Second Amendment activists stay active, McDonald can be the starting point for a bright new era for the Second Amendment, and for the first steps in rescuing the people of our most anti-gun states from our worst and most oppressive anti-gun laws. In the long run, McDonald will help raise awareness of gun owners’ rights among the public, leading to legislators and courts being more protective of rights, and thereby increasing public awareness even further.

We have come a long way from 1983, when the new Chicago handgun ban was hailed as the first big step towards using the d.c. handgun ban as a model for nationwide prohibition.

June 28, 2010, will go down in history as a great day for American liberty.

ig i ta l • Jul10

C O V E R S T O R Y

By all accounts, Arizona rancher and nra Life member Robert Krentz was a great guy—the kind of guy

you’d like to have as a friend and neighbor.

PhotograPh by DaVID ZICKL

A quiet, humble man, Krentz lived his dream along the Grand Canyon State’s southern border, raising kids and ranching on the land that had been in his family for more than a century.

“He was always kind and he was always fair,” said Krentz’s son Frank, who is also an nra Life member. “It didn’t matter what time of night it was, if you called him and said that you needed five gallons of gas or a tire, or to come help on a well. We drove in the middle of one night to pick up our neighbors. Their truck broke down 400 miles north of where we were. He and I loaded up and drove all night to pick them up, and he didn’t even hesitate about anything like that.

“He always seemed to think about other people first.”“Rob and I had three children,” said Susan Krentz, Robert’s

wife of 32 years, “and we felt that living on a ranch provided opportunities to make the boys and our daughter the very stable, hard-working people they are. We just enjoyed living there [on the ranch]. I mean that’s what Rob and I knew. We thought we were the luckiest people in the world because we enjoyed going to work.”

All that ended on the morning of March 27, 2010.Krentz, who was 58, was working on the ranch just like

nearly every other day of his adult life when he apparently saw something out of order that took him off the beaten path. He was ambushed and murdered by unknown criminals who had crossed over from Mexico and fled back across the border. An American family man shot down on

NRA- McDonld v. Chicago "Handgun ownership is now legal and constitutionally protected everywhere in...

News & Politics

Transcript of NRA- McDonld v. Chicago "Handgun ownership is now legal and constitutionally protected everywhere in...