Vail Law: Here’s a look at the Supreme Court and gun rights
July 6, 2010
There’s a new sheriff in town. Not literally, but by the Supreme Court’s apparent reckoning in McDonald v. Chicago, a gun-rights case, there just as well might be 300 million of them. What the court decided, in a 5-4 decision, was that the 30-year-old handgun bans in Chicago and nearby Oak Park, Illinois were unconstitutional infringements on the right to bear arms as protected by the Secondnd Amendment. There’s a lot to chew on here, so let’s start at the top.First, the Supreme Court of the United States is the highest level in the nation to which a legal matter may be challenged following a determination at trial. The Court takes only a handful of cases each session (which runs from the first Monday in October until late June or early July of the next year) and tends to pick issues of controversy, unsettled law, or cases which at lower levels of appeal have had divergent or conflicting outcomes. All Supreme Court Justices are nominated by the President and are confirmed by the Senate by a majority vote. Similarly, decisions of the Court need only be by majority vote. If one or more justices are absent or “recuse” themselves from a particular matter, the majority decision of those present and voting prevails. Commonly, one or more of those justices in the minority will write a dissenting opinion, detailing why they were opposed to the majority view. Assignments for writing a majority opinion are doled out by the Chief Justice (currently, John Roberts, Jr.) and explain the majority’s logic in coming to its conclusion. Opinions – both majority and dissenting — can, at times, be exceedingly brief and, at others, can be of mind-numbing detail and length (in Furman v. Georgia, for example, a 1967 case, the total length of the combined opinions ran to 233 pages; by contrast, in the 1817 case of United States v. Barker, the majority opinion ran just six words and no dissent was filed). But what about guns?The issue in this case – known in legal shorthand as “McDonald” – was interpretation of the breadth and reach of the Second Amendment. If you’ve been reading my prior columns, you know that Amendments are additions to the original Constitution, the first 10 of which (known as the Bill of Rights) were adopted by the First Congress at its first session in New York City, on September 25, 1789, submitted to the States, ratified by the necessary number of States, and declared in force on December 15, 1791.The Second Amendment is a model of brevity and states, in its entirety: “A well regulated Militia, being necessary to the security of a free State, the rights of the people to keep and bear arms shall not be infringed.”What was at issue in McDonald was how those 27 words are to be interpreted. Were those words intended to confer an individual or collective right? The Court adopted the former rather than the latter. Writing for the majority, Justice Samuel Alito, held, “Self-defense is a basic right.”Not just one amendmentThe Constitution, however, works in mysterious ways. In order to effect its decision, the Court had to apply not only the Second Amendment but the 14th as well. The 14th Amendment was adopted in 1868 as part of Reconstruction following the Civil War.While the Second, in the Court’s opinion, vouchsafes the individual right to bear arms, the 14th must also be invoked. That Amendment provides, at Section 1, in relevant part, that “…No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without the due process of law; nor deny to any person within its jurisdiction the equal protection of law.”In consideration of the 14th Amendment, the Court in McDonald advanced that individual gun ownership is a right protected by the Second Amendment and that the 14th Amendment (which prohibits states from depriving citizens of their liberties without due process of law) should be interpreted to prohibit states from banning the “liberty” of gun ownership.Depending on one’s view, McDonald clarifies or obscures, advances or de-evolves the on-going debate about handgun ownership – in particular, an American citizen’s liberties in general. What cannot be disputed, however, is the genius, flexibility, and marvelous invention of the U.S. Constitution and the tiered system of American jurisprudence. In a sense – whatever your particular point of view – we are all winners of a sort under a system and structure which provides for, and encourages, debate, disagreement, dissent and, if not exactly acclamation, at least grudging consensus.Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley.His practice areas include: business & commercial transactions, real estate & development, homeowner associations, family law & divorce, and civil litigation. He may be heard on Wednesday nights at 7 p.m. on KZYR radio (97.7 FM) and seen on ECO TV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at email@example.com.