(2010-07-06) The banner news of course is from the Supreme Court, which in McDonald v. Chicago has confirmed what we have all known: the Second Amendment is not only an individual right that binds the federal government (as confirmed in Heller) it also binds state and local governments. The long-standing handgun bans in Chicago will have to go – and so will many other restrictions in battles yet to be fought.
Now begins the real heavy lifting. This ruling does not wave a magic wand to make gun control go away. Each law that is an overreach requires a court challenge and ruling in order to effect change. Even in the McDonald case, the ruling sends the law back to Illinois, giving officials a ‘do over’ on their gun laws. No surprise here: Mayor Daley vows to create a Byzantine system of restrictions that will represent a de facto ban. Each of these new restrictions will have to be fought, just as the Heller matter continues in DC. Limits there have kept the District a virtual gun-free zone. Well, free of legal handguns anyway. Less than 1,000 have been registered since the ruling, and even that high a figure reflects the perseverance and big personal investment of strong souls.
Nationwide we are on uncharted ground. Gun grabbers have incentive to enact every possible restriction at state and local level to test new limits of what they can get away with. They know many new restrictions will be struck down, but they will put them in anyway. After all, it costs them nothing to do so, since they fight with free money … ours. (We on the other hand must fight with donations out of pocket.) Their zeal to enact new gun laws will need to be moderated by knowledge that in the near term the same court will judge their fate. That court may still side with us.
Our side has every incentive to move fast and challenge many laws while the highest court has a bare pro-gun slant. But this in turn is moderated by the fact that we won’t be able to afford all possible fights, and too, many cases will advance not of our choosing. Creative defense attorneys should give their clients a zealous effort, but the sad reality is, not all such cases have fact packages that will lead to the kind of reported case law we need. The danger is real that poorly argued cases by lawyers lacking sufficient resources in the big game could end up compounding our problems. Worse, don’t presume that the five justices who gave us this win are libertarian-minded. Some obviously believe in a Second Amendment right but nevertheless have a track record of sticking up for strong police powers in a ‘big government’ model of the society. There are some gun law questions we should not ask this court.
We are living the Chinese curse, interesting times!
Maryland has potential to be a front-line state in the post-McDonald world, however one key bit of case law must be dismantled before almost any other redress can be won, because it affects who has standing to challenge, say, one-gun-a-month restrictions or the mandate for health record disclosures prior to handgun purchase. The case is Onderdonk v. Handgun Permit Review Board, a 1979 ruling that Maryland citizens have no Second Amendment right. McDonald makes that notion ripe for reversal, but that doesn’t mean it is automatically reversed. Generations of left wing appointments to the bench are not eager to take “judicial note” of the federal ruling, and so will likely continue relying on Onderdonk to reject pro-gun arguments in court proceedings. They will do so until stopped.
One case that might revisit Onderdonk is warming up on deck now. It is Williams v. State of Maryland, and it will be argued in the fall before Maryland’s highest court. It could be great for us, but from the fact package it also could be an open invitation for justices to confirm that while we have a Second Amendment right, it only applies in the home. This is one which we can all only watch as it unfolds … and pray.
Prince George’s County State’s Attorney Glenn Ivey told the Daily Record: “There’s definitely a right [to keep and bear arms] but the scope of it will be determined over time. The open question for Maryland is going to be how broadly or narrowly will that [right] be interpreted.” Attorney General Doug Gansler issued a statement that his office is reviewing McDonald but so far “we do not believe that any of Maryland’s laws are so restrictive that they violate the Second Amendment.” (As we previously reported, Gansler – running unopposed for re-election – filed a brief in McDonald to argue against us. Gansler detests any notion of the Second Amendment as an individual right.)