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What a Century-Old Ruling Could Mean for Chicago's Handgun Ban

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Is it constitutional for Chicago and Oak Park to prohibit handguns? The U.S. Supreme Court will hear arguments on that question next month in a case called McDonald vs. the City of Chicago. But it won't be the first time the high court has heard a case involving gun laws in Illinois. Contributor Robert Loerzel has the story.

Listen up in the coming weeks for our continued coverage on McDonald versus the City of Chicago. Robert Loerzel will bring us more on the history of Chicago's handgun ban. And, we'll explore our city's black market trade in guns.

Barely anyone remembers who Herman Presser was, but his name shows up a lot in court rulings about gun control. Last year, federal judges invoked his name when they issued a decision upholding Chicago's law against handguns. They cited a Supreme Court ruling called Presser versus the State of Illinois. Herman Presser was a German immigrant who marched through the streets of Chicago on September 24, 1879. He was leading a group of labor activists.

HALBROOK: And he actually was on horseback and carrying a sword. And some of the members of that organization were marching with unloaded rifles. They lived in a very different world than we do today. It was very common in those days to have militias. Some of them were state militias, some of them were independent companies. And they would march in the streets.

Stephen Halbrook, a lawyer in Virginia for the National Rifle Association, says Presser was upset because Illinois had outlawed private militias.

HALBROOK: The state of Illinois passed a law saying there would be what they called a National Guard. It would no longer be composed of all able-bodied citizens who were male, but it would be composed of only eight thousand persons. And the feeling was those persons would be representative only of big business interests — the interests of the so-called capitalists. And that it was an attempt to squeeze out of the militias the workingmen and proletarians.

So, Presser was given a ten-dollar fine. He appealed his case to the U.S. Supreme Court, and in 1886, the justices ruled against him. They said Illinois could outlaw private militias if it wanted to. But what about Presser's right to bear arms? Wasn't that guaranteed by the Second Amendment? The court said no. Here's how Justice William Woods explained it:

WOODS (dramatized): The amendment is a limitation only upon the power of Congress and the national government, and not upon that of the state.

In other words, the Second Amendment doesn't have anything to do with state and local governments. And for the past hundred and twenty-four years, that's been the law of the land.

SOLOMON: The holding of Presser has never been overturned, nor really even revisited.

Benna Solomon is deputy corporation counsel for the city of Chicago. She says Chicago's 1982 law prohibiting handguns is constitutional, since the Second Amendment does not cover state and local governments.

SOLOMON: The Bill of Rights, of course, at the time that it was adopted, ratified, applied only to the federal government.

In 2008, the Supreme Court ruled that the Second Amendment protects an individual's right to own a handgun within the city limits of Washington, D.C.

SOLOMON: The court regarded the District of Columbia as a federal district and therefore part of and bound by the same restrictions as the federal government, so the Second Amendment directly applies to the District of Columbia.

So now, the question is whether the Second Amendment applies to state and local governments, too. Do people in Chicago and Oak Park have the same right to own a handgun as people in Washington, D.C.? The key to answering that question is the Fourteenth Amendment. Ratified after the Civil War, the Fourteenth Amendment protected the rights of freed slaves.

SOLOMON: Oppression of the freedmen was rampant during Reconstruction. So it was intended to level the playing field.

The Fourteenth Amendment was aimed squarely at state governments. Here's what it says.

FOURTEENTH AMENDMENT: 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 due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

But the question is, Which rights can't be violated by the states? Stephen Halbrook, the lawyer for the NRA, says the Fourteenth Amendment was supposed to force states to observe freedoms that were already enshrined in the Bill of Rights.

HALBROOK: Freedom of religion and speech, to keep and bear arms, freedom from unreasonable search and seizure, things like that.

But when the Supreme Court ruled in Herman Presser's case in 1886, the justices didn't see things that way. They did not use the Fourteenth Amendment to extend the Second Amendment to states. In the years after that, however, the Supreme Court changed its philosophy. One case at a time, it used the Fourteenth Amendment to extend other freedoms to local governments. City counsel Benna Solomon.

SOLOMON: The court has applied most, but not all, of the provisions of the Bill of Rights to state and local governments.

So when the Supreme Court hears the case of McDonald versus the City of Chicago, it will decide whether the right to bear arms is the kind of freedom that's protected by the Fourteenth Amendment. Halbrook says the answer is simple.

HALBROOK: Whether the right is fundamental is a primary question. One of the primary ways we see whether rights are fundamental is whether they're in the Bill of Rights.

And since the right to bear arms is right there in the Second Amendment, Halbrook says that makes it pretty fundamental. Solomon disagrees.

SOLOMON: Our response to that is: No. The test for that is whether the right is implicit in the concept of ordered liberty. That's the test that the Supreme Court has most often used. And it's a very high standard. There are many civilized countries around the world that we could all agree are civilized countries that do not allow citizens to keep and bear arms. England does not, Australia does not, New Zealand does not, Japan does not. We as Americans do not regard these as uncivilized places. They have very orderly societies.

Now, it's the Supreme Court's turn to decide. For WBEZ, I'm Robert Loerzel.

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