By Dean Weingarten
Arizona – -(Ammoland.com)- In the case, ILAFR v. City of Chicago, the District Court struck down Chicago’s ban on all sales and transfers of firearms within the city today, though a status hearing is set for 14 January 2014, where the court will give the City the opportunity to file a motion for stay pending appeal.
The finding by the court in summary judgment for the plaintiff is in stark contrast to the short shrift that the second amendment received in the recent decision on the “Safe Act” in New York. It is likely that both decisions will be appealed, but both are worth reading, if only to see the gulf in the treatment of the second amendment.
In the New York case, the judge barely attempts to give his decision a gloss of “intermediate scrutiny” when it is clear he is using the “rational basis” standard. In the Illinois case, the reasoning is clear and well thought out, and the differences in levels of scrutiny is well stated.
Some highlights from the Illinois decision:
But on the other side of this case is another feature of government: certain fundamental rights are protected by the Constitution, put outside government’s reach, including the right to keep and bear arms for self-defense under the Second Amendment.
The judges clear rejection of the “rational basis” standard is stated here:
But no matter where on the sliding scale the challenged statute is located, one thing is sure: the standard of judicial review is always stricter than rational basis review. See Heller, 554 U.S. at 628 n.27 (“If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.”)
The decision is a clear win for second amendment supporters. While some would say that any law restriction the sale or possession of firearms is an infringement, the exceptions for felons and mentally ill people are of long standing precedent. The judge makes clear that to be outside of the scope of the second amendment, restrictions had to be accepted as outside the scope in 1791, when the amendment was adopted.
This, then, is the framework that Moore and Ezell have crafted. For each challenged Municipal Code ordinance, the City bears the burden of first establishing that the ordinance regulates activity generally understood in 1791 to be unprotected by the Second Amendment. If the City does not carry that burden, then it must proffer sufficient evidence to justify the ordinance’s burden on Second Amendment rights. And in this means-end analysis, the quantity and persuasiveness of the evidence required to justify each ordinance varies depending on how much it affects the core Second Amendment right to armed self-defense and on whose right it affects. The more people it affects or the heavier the burden on the core right, the stricter the scrutiny. If the City also fails at this second stage, the ordinance is unconstitutional.
These are the sort of tests that are applied to the first amendment. If the second amendment comes to be accepted as requiring the same level of scrutiny as the first amendment, many of the more restrictive laws in those states with burdensome firearms regulations will fall.
This decision could reinforce the appearance of a split in the lower courts, which would improve the chances for the Supreme Court to hear a case to clarify matters. Whether either decision will be upheld at the appeals level is yet to be seen.
©2013 by Dean Weingarten: Permission to share is granted when this notice is included.
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About Dean Weingarten;
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of constitutional carry was attained. He has degrees in meteorology and mining engineering, and recently retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.