Supreme Court has shot at another gun rights’ case | Editorials & Opinions | Star-Telegram
Supreme Court has shot at another gun rightsí case
Posted Monday, Sep. 07, 2009
By JIM HRYEKEWICZ
Special to the Star-Telegram
Otis McDonald is a great American.
In the 1960s, he wore an Army uniform and served with distinction. He then moved home to Chicago were he began a family. Meanwhile, he busied himself during the days with work at his local union. Eventually, he led the effort to integrate his union and ended up as president of the union.
In recent years, McDonald looked around Chicago and decided that he could do something about the shadowy areas of the city outside the bright lights. He went into impoverished, crime-riddled neighborhoods as a community activist. Yet his work inevitably meant he crossed paths with shady characters ó drug dealers and gang leaders. Justifiably, he feared for his safety. And he wanted a gun.
"I only want a handgun," he explains, "for my protection."
Yet the city of Chicago disagreed. A city ordinance there essentially prohibits McDonald ó or any resident ó from owning a handgun. Not that the ordinance has stopped the criminals. They seem to own lots of guns.
McDonald was encouraged last year when the U.S. Supreme Court issued its ruling in the case of District of Columbia v. Heller. In that ruling, the court essentially struck down the famous gun ban in the nationís capital. For years, legal scholars had debated whether the Second Amendment applied to individuals or the government.
Scholars on the left believed it merely gave the government the power to create a formal militia.
But other scholars pointed out that the entire purpose of the Bill of Rights was to guarantee rights to individuals ó like free speech, free expression of religion and free association. Why was the Second Amendment different?
Last summer, the Supreme Court ruled that itís not. In writing for the majority, Justice Antonin Scalia said a review of "founding-era sources" convinced the court that the term " 'bear armsí was unambiguously used to refer to the carrying of weapons outside of an organized militia."
Yet later, the 7th U.S. Circuit Court of Appeals said that itís still unclear whether this meant that states have to respect the right to keep and bear arms. Over the years, the courts have used a variety of standards to determine whether particular rights applied against the states, as well as the federal government.
If the Second Amendment did not apply to the states, local jurisdictions could infringe this fundamental right with impunity, even though the federal government cannot.
Such a result would never be tolerated for other fundamental rights expressly reserved to "the people." Consider the First Amendmentís guarantee of the right of "the people" to peaceably assemble, or the Fourth Amendmentís guarantee of the right of "the people" to be free from unreasonable searches.
Enter Otis McDonald. His case is making its way toward the Supreme Court. And it promises to be a historic case.
The Blaies and Hightower law firm in Fort Worth recently submitted an amicus brief on behalf of gun associations in more than two dozen states supporting the right of McDonald and others to own and keep a gun in their homes.
The firmís partners believe Chicago ó and other cities ó must abide by the Second Amendment.
The Supreme Court last year ruled that the Second Amendment is an individual right. Yet the 7th Circuit Court believes this right may not apply to states. We believe it does.
When Thomas Jefferson first read through the draft of the proposed Constitution, he wrote to his friend James Madison and suggested that something be added: a Bill of Rights. Why?
"A bill of rights is what the people are entitled to against every government on earth, general or particular," he wrote, "and what no just government should refuse, or rest on inferences."
Notice the formula Jefferson put forward: a Bill of Rights "against every government on earth, general or particular."
There is no doubt that the Founding Fathers intended for the Bill of Rights to apply to individuals. And we have no doubt that the Supreme Court will agree with us and grant Otis McDonald and other law-abiding citizens the right to keep and bear arms for their own protection.
BLAIES AND HIGHTOWER
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Fort Worth, Texas 76102
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Website: Blaies & Hightower, L.L.P.