BY MICHAEL A. FAGALDE, PARTNER IN THE MARIPOSA LAW FIRM OF ALLEN, FAGALDE, ALBERTONI & FLORES, LLP

Ban on Gun Ownership

Found Unconstitutional

On June 28, 2010, the United States Supreme Court found in McDonald v. Chicago that city ordinances in Chicago and the village of Oak Park banning handgun possession by private citizens were unconstitutional.

The case arose from suits filed against Chicago by several persons, including Otis McDonald, a community activist in his late seventies, who lived in a high crime area and whose efforts to improve his neighborhood had led to violent threats against him from drug dealers, and from an action filed against Oak Park by the National Rifle Association and others. Each suit challenged ordinances banning private citizens from possessing handguns within the city limits.

Both cities argued their laws were constitutional because of their belief that the Second Amendment’s guarantee of the right to keep and bear arms had no application to the states. The United States Supreme Court disagreed. They relied on their 2008 decision in District of Columbia v. Heller where they had found unconstitutional a District of Columbia law that banned possession of handguns in the home, and extended that rule to laws enacted by states and local governments, based on the Due Process Clause in the Fourteenth Amendment.

In reaching its conclusion, the Supreme Court focused on two concerns. First, the right of a private individual to possess handguns in his or her home for self defense, and second, whether or not the Second Amendment right to keep and bear arms is incorporated in the Fourteenth Amendment’s requirement that no state deny any citizen due process of the law.

The court easily found that the framers of the United States Constitution clearly envisioned the need for private citizens to have access to firearms in their home for self defense purposes. Interestingly, the court noted that in 1982 Chicago had enacted its ordinance for the express purpose of protecting its residents from injury or death from firearms, but that Chicago Police Department statistics showed the handgun murder rate had actually increased since the that ban was enacted.

The discussion about the applicability of the Fourteenth Amendment involved the bulk of this decision. That discussion began with the consideration that the Bill of Rights, including the Second Amendment, originally only applied to actions by the federal government. Shortly after the Civil War the Fourteenth Amendment was adopted. Section 1 of that amendment says that a state may not abridge “the privileges or immunities of citizens of the United States” or deprive “any person of life, liberty, or property, without due process of law.”

Following ratification of the Fourteenth Amendment there was a long series of Supreme Court decisions which generally held that the due process clause of that amendment incorporated key provisions of the Bill of Rights and thus made those provisions applicable to actions by state or local governments. Amazingly, the Supreme Court had never directly addressed the question of whether the right to keep and bear arms applied to the states. The decision in this case clearly settles that question.

Now what? The decision merely says a state or local government can’t ban the possession of handguns in one’s home. There was no discussion of carrying handguns in public, either loaded or unloaded. There are numerous California laws and local ordinances that prohibit the carrying of concealed weapons in vehicles, loaded weapons in vehicles, or loaded weapons in public, unless by law enforcement officers or those with concealed weapons permits. I think this decision will open the door for the “open carry” advocates, and others, to challenge many of these laws. As always, one major court decision spurs many more court challenges.

(Direct your questions and comments to Mike@Mercedlaw.com.)