Justice Robert Jackson once wrote of the Supreme Court: “We are not final because we are infallible, but we are infallible only because we are final.” Years later, Gerald Rosenberg argued that the Court is not even final. Chicago, following in the tradition of segregationists, anti-abortion advocates, and proponents of capital punishment*, is determined to prove Rosenberg right and Jackson wrong. Mere days after the Court’s ruling on Chicago’s ban on guns the city council unanimously passed new gun control regulations.
Unsurprisingly, Chicago’s critique of the Court’s ruling was based on policy considerations, rather than Constitutional ones.
Ald. Toni Preckwinkle (4th) said “There’s no way if they knew the violence our young people face every day that they could decide this was a reasonable course of action.”
There’s nothing new in Court critics confusing policy arguments with constitutional arguments. Nearly everyone who objected to the Court’s ruling in Citizens United v. Federal Election Commission focused on the horrors of corporate spending in campaigns, rather than the question of whether the First Amendment allowed Congress the power to restrict corporate speech. Likewise, those who objected to the Court’s ruling in Morrison v. Olson–which struck down the portion of the Violence Against Women Act allowing women to sue their alleged abusers in federal courts–spoke primarily about the plight of abused women, rather than the question of whether the Constitution allowed Congress to add to the federal courts’ jurisdiction in that way.
But while there’s nothing new here, it’s still depressing that so many people believe the Constitution should allow Congress to address any policy issue they deem important. That’s no less than a direct assault on the very concept of constitutionalism: that government must be limited; that some issues are simply beyond the scope of the government’s authority; that it can’t regulate every aspect of our lives.
But the substance of Chicago’s new law is a different matter. Like the many state attempts at restricting abortion it is an effort to find the limits of the Court’s ruling. Supporters of gun rights will object, just as supporters of abortion rights object to each state effort to limit abortion, but such attempts are well within the range of legitimate politics. The Court’s ruling did not attempt to define all the potential limits of 2nd Amendment rights. To do so would be impossible, and would violate the Court’s limitation to considering only actual “cases and controversies,” and not hypothetical cases.
Chicago’s law contains a number of restrictions on guns, some likely to be more constitutionally allowable than others. Here are my predictions for the various elements of the law, should they come under legal attack (as at least some of them surely will). The elements addressed are those found in the AP article, as reported here.
1. A ban on gun shops in Chicago: Technically there’s no 2nd Amendment issue here. This is a interstate commerce clause issue. Many local economic regulations are upheld by the Court, but an absolute bans on a particular business seems dubious. I think Chicago could get away with strictly regulating their location via zoning, as cities often do with strip clubs, but an absolute ban seems likely to be struck down.
2. Prohibits carrying a handgun onto your front porch or into your garage: I think there’s no chance this one stands. Your porch and garage are your property, no less than your house. This is an attempt to create something that is not a de jure ban, but is a de facto one.
3. Limits the number of handguns that can be registered in Chicago to one per month: This will be upheld. This is a general regulation, and a legitimate policy area.
4. Prohibits gun owners from having more than one handgun in operating order at any time: No chance in hell that this is upheld. This is again an attempt to get as close to an absolute ban as they can get away with, which Chicago has been very upfront in admitting. But I would like to see the definition of working order (I can’t find the text of the Chicago law yet). If it just means only one gun can be loaded, then it might survive scrutiny. But if it means only one gun can be assembled, or have a firing pin, etc., then I don’t think it can stand.
5. Mandates that gun owners with children in the house must keep the guns in lock boxes or have trigger locks on them: This one will stand. The Court will see this as a public safety regulation and allow it. That’s if it is challenged, which I would suspect it might not be. This is, after all, what many safety-minded gun owners would do.
6. Requires a four hour class plus one hour gun range training: I think this question would turn, like so many of the abortion restrictions, on whether the level of constraint is reasonable. The Court will say it’s constitutionally legitimate for the City to require some education in order to register a gun, but not too much. E.g., having to read a pamphlet before registering the gun would undoubtedly be OK, but a 100 hours of gun range training would not. I suspect the Court would say four hours in-class and one on the range is legitimate.
7. Bans those convicted of a violent crime, domestic violence, or two or more convictions for driving under the influence from owning guns: The first two are non-problematic. The latter is iffy.
Ironically, one of Chicago’s arguments before the Court was that striking down the ban would be very costly because of all the lawsuits it would have to defend. It should not go un-noted that it is voluntarily incurring that cost by making laws as restrictive as possible under a very narrow reading of the Court’s ruling. Were it simply to relax its gun control laws, it would not face those costs. That it has chosen to incur those costs is not wrong, but the fact that it could avoid them puts the lie to their claim that it’s a constitutional argument in support of their former law.
But I emphasize a final time, Chicago’s decision to probe the limits of the Court’s ruling is wholly legitimate. That is the way our constitutional history proceeds, and we have now opened up a new era in that history, as we explore the nooks and crannies of the 2nd Amendment. It ought to be a fun ride for constitutional scholars, if not for anyone else.
* No derogatory implication is meant in comparing them to segregationists, etc. Each of those groups vigorously fought adverse Supreme Court rulings. The segregationists lost, the capital punishment proponents (mostly) won, and the anti-abortion advocates have won some and lost some, with no final outcome as of yet.