FEATURE

McDonald v. Chicago: What constitutes a win?

Most of the conversational around the industry since Tuesday's Supreme Court oral arguments in the McDonald v. Chicago case has been pretty optimistic. It seems a foregone conclusion that the Supreme Court will vacate both firearms restriction ordinances in Chicago and its suburb, Oak Park, lllinois.

But there's been very little said about Otis McDonald, the 76-year old retired maintenance engineer who's the primary name on a lawsuit that may become yet another fundamental rib in American jurisprudence.

McDonald and his wife live in the far South side of Chicago where they've watched their neighborhood deteriorate from familial to downright dangerous. Despite having his home wired with burglar alarms "wired right into the police station" and owning a legal firearm (a shotgun), McDonald said he felt he would be better protected if he also had a handgun. His rationale was simple: a handgun would be easier for an aging husband or wife to handle.

Despite the fact that Chicago police point out the fact that it's mainly property crimes in his neighborhood, they can't deny the fact they've gotten worse. Burglaries and thefts in McDonald's area risen from 881 in 2006 to 1,215 in 2008 (the latest figures available). Murders have remained steady at 17 per year.

So, Otis McDonald joined the Illinois State Rifle Association, hoping to find an answer. What he found was attorney Alan Gura, looking for Chicago residents to bring a challenge to the city's handgun ban - and a broader interpretation to the Heller decision.

For Gura, McDonald was a perfect case, an elderly black man seeking to protect himself and his neighbors in a neighborhood going downhill. McDonald, on the other hand, saw the situation as an answered prayer. Today, he still maintains his reason for wanting the ban overturned was a simple one, "I was doing this for me."

As expected, the Seventh Circuit Court of Appeals ruled against McDonald and the other defendants, holding that the Supreme Court had ruled -more than 100 years ago - that the Second Amendment applied only to the federal government.

Chicago, like other cities with a liberal political philosophy, believes, unlike Otis McDonald, that allowing law-abiding citizens to possess handguns will create a wave of handgun violence, firearms accidents and suicides that trump any possible good a handgun could bring.

In a city where handguns were used in 410 of 412 murders in 2008, it would seem that the criminal element had empirically proven that handguns were more than present in the city. Overwhelmingly by the criminal element.

And as has been pointed out many times, the criminal element isn't concerned with the law. They are unmoved by boundaries adhered to by law-abiding citizens.

Speaking with the NRA's special counsel, former Solicitor General Paul Clement, following the oral arguments, he said the argument he presented to the court on behalf of the National Rifle Association (accorded a portion of Gura's time) was pretty simple "Does," Clement asked, "a citizen in Chicago have the same right as a citizen in Washington, D.C. We believe the only answer is 'yes'".

In presenting the only argument of the morning that wasn't constantly interrupted by the sometimes sarcastic justices, it would seem Clement made a compelling case for a simple argument.

If the Supreme Court were to find that they didn't, Clement said, it would be equivalent of the court saying "our decision on Heller really wasn't all that big a deal."

No one thinks that likely.

That unlikelihood is despite the fact that the three remaining justices who dissented on Heller still worked - energetically at times- to make the case for gun regulations. As Justice Stephen declared flatly during one of his more vocal points, "guns kill."

That's where the philosophical divide between gun owners and gun opponents seems irreconcilable.

To those who oppose firearms, it's the tool that ultimately makes the decision to act, not the person using it.

To gun owners, that's simply absurd.

Unfortunately, in situations where, as Chief Justice Roberts pointed out, "politics will still decide" emotional parades of weeping relatives will influence enough voters to keep the issue at a rolling boil.

Meanwhile, I have no way of knowing if the U.S. Supreme Court will take a look at a decision last week from the Supreme Court of the state of Washington regarding Second Amendment rights. But they should.
In that opinion, Justice Richard B. Sanders wrote a paragraph in his decision that could prove to be a critical point:

"Supreme Court application of the United States Constitution establishes a floor below which state courts cannot go to protect individual rights. But states of course can raise the ceiling to afford greater protections under their own constitutions."

(pg 18. No. 82154-2, State of Washington v. Christopher William Sieyes. http://www.courts.wa.gov/opinions/pdf/821542.opn.pdf)

That simple bit of writing may go a long way toward establishing states' recognition of the fact that a Supreme Court decision is not the far limit of a law; it's the minimums for protection. This decision says the decisions from the high court establish a broad-brush national minimum - one designed to work in all jurisdictions.

It also says that while states may go further to guarantee rights. That recognizes -at least in Washington's State Supreme Court - that it may be necessary to do more to protect individual rights.

That would seem to reinforce recent legislative measures passed by Tennessee and Montana that extend firearms rights. Their new laws say firearms made, sold and kept only in those respective states are exempt from all federal laws.

On Wednesday, the Wyoming legislature passed a similar measure that actually assigns fines and sentences for any state or federal official trying to any federal gun law on firearms and sold in Wyoming. Wyoming Governor Dave Freudenthal says he'll sign the bill into law.

That extension of rights is admittedly, not much more than a symbolic push back at the federal government's current tendency to try and regulate, well, everything, but it is a definite message that residents of these states will vigorously protect their constitutional rights.

Finally, the Washington State decision establishes an instance of twenty-first century law with a lower court recognizing the intent -and appropriateness - of the Supreme Court in most instances.

It is especially significant for the Heller ruling, recognizing a first step in guiding the states in creation of jurisprudence at all levels of the court systems that will provide a web of overall guidance on the Second Amendment and firearms rights.

It wouldn't be accurate, however, to say that the individual interpretation of the Second Amendment is now written in stone.

Earlier this week, Justice Ruth Bader Ginsburg -one of the three remaining dissenting justices in Heller- comment that perhaps a "future court" would reverse the Heller decision.

For those who hold an individual right the founding fathers considered to be "granted by the Almighty" can't be taken away by the stroke of a pen, we can only hope that the comment was Ginsberg's wish and not a prophecy. Regardless, barring something sudden change in the makeup of the court, it seems unlikely she will serve long enough to vote on that reversal.

But there is only one rule regarding the Supreme Court that seems to always be quoted and believed: the court will do what the court will do.

That's why it's the Supreme Court. It's also why we'll be watching, and we'll keep you posted.

--Jim Shepherd

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