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The First Dominos Fall: Morton Grove and Wilmette Handgun Bans

After the D.C. city council banned handguns in 1976, and the voters of Massachusetts overwhelmingly rejected a handgun ban initiative that same year, the next U.S. jurisdiction to enact a handgun ban was the Chicago suburb of Morton Grove, in 1981. Chicago did the same in 1982, and four other Chicago suburbs, including Wilmette, later followed suit.

The Mayor of Morton Grove has announced that he will propose repeal of the handgun ban. [Note that the linked NPR story misspells the name of Second Amendment attorney Stephen Halbrook.] Wilmette, meanwhile, has suspended enforcement of its handgun ban. [HT Snowflakes in Hell.]

Both Morton Grove and Wilmette were among the cities sued on Friday by the NRA. Their decisions are sensible. While the issue of Second Amendment incorporation is still unresolved, Richard Daley's government in Chicago can spend its own funds to fight the issue all the way to the Supreme Court. If Daley wins, the suburbs can re-institute their bans. If Daley loses (an outcome that seems more likely than not if the Supreme Court takes the case), then Wilmette and Morton Grove have saved themselves hundreds of thousands of dollars of attorneys fees, since they would have to pay their own lawyers, and have to pay the plaintiffs' lawyers for bringing a successful civil rights claim.

Morton Grove was the site of perhaps the worst legal defeat for the Second Amendment in American history. The lawsuit against the ban lost 2-1 in the Seventh Circuit, and then 4-3 in the Illinois Supreme Court (notwithstanding specific legislative history from the 1966 Illinois constitutional convention that the right to arms provision would prevent handgun bans). The U.S. Supreme Court denied certiorari in the federal case. Attorneys Stephen Halbrook and Don Kates were closely involved in the Morton Grove litigation.

In Heller, the Morton Grove cases were the strongest precedents which plainly supported the constitutionality of a complete handgun ban, even under an individual right to arms.

Ironically, Morton Grove proved very helpful to pro-Second Amendment forces in other states. The case received much national attention, and Morton Grove's ban was the key example used by NRA lobbyists to promote state preemption laws all over the country in the 1980s. These state laws eliminated or restricted many local gun controls, and always outlawed local handgun bans. The preemption laws were important in stopping the spread of local handgun prohibition. As a result, when the time came for the U.S. Supreme Court to hear Heller, handgun bans remained freakish exceptions to the national norm.

It is very pleasing to see constitutional rights being re-established in the site of one of their most notorious defeats.

ratel (mail):
I do not see how a unilateral suspension of enforcement of the ban by Wilmette will get them out of the litigation. I may be forgetting my rules on standing and mootness, but I don't think a defendant in a case like this can moot the case against them by unilaterally stopping their alleged violation if they would be free to simply start again.
6.29.2008 10:45pm
ratel (mail):
On a second minor point, although some legislative history suggested that the Illinois Constitution was not meant to prohibit handgun bans, the clear language of the specific amendment subjects the right to bear arms in Illinois to the state's police power.
6.29.2008 10:52pm
ratel (mail):
"was not" should be "was" above
6.29.2008 10:53pm
Brooks Lyman (mail):
People who write Constitutions need to be very careful about their wording.

The Massachusetts Constitution's RKBA clause says something like "The people have the right to keep and bear arms for the common defense." This dates from back in the 18th Century.

To me, "the common defense" covers self defense against criminals, who are the common enemy of society and the law abiding. Unfortunately, the Massachusetts Supreme Judicial Court, some decades back, decided that it referred to a collective right, and that it was OK to require MA citizens to be licensed in order to own - not just carry - a firearm.

Wonder if we stand a chance of getting this changed now?
6.29.2008 11:16pm
billb:
ratel: Somebody in Wilmette needs standing to sue to overturn the ban (Heller tried to get and was denied a permit in DC, for example). If the ban in not being enforced, how can anyone have standing to sue?
6.29.2008 11:27pm
ratel (mail):
Anyone who could potentially face sanction if the city unilaterally started enforcing the ban again should have standing.
6.29.2008 11:29pm
tcg:
Ratel,

If they suspend enforcement, the case is moot. Courts will not hear cases based on the hypothetical situation of them possibly at some future point in time re-instating the ban. There is no way for the court to know if they a) would ever institute a ban and b) apply the ban as they had previously. A lawsuit against Morton Grove because of the handgun ban that doesn't actually exist in fact is exactly the scenario in which mootness applies.
6.29.2008 11:32pm
Should be bar studying:
billb:
I think Ratel has it right. The plaintiff needs to show that 1) Wilmette has the power to re-institute the ban, and 2) were the ban re-instituted, plaintiff was be harmed.

If Morton Grove gets the ban repealed, then they are in the clear.
6.29.2008 11:39pm
billb:
Perhaps, should be bar studying, but until there's either a denial of license (like in Heller) or a criminal prosecution, the hypothetical person will not yet have been harmed, and therefore, there's no case or controversy. Declaratory judgments of non-infringements are available in some civil cases like under copyright law, but otherwise, I think the state has to actually harm the someone before an appeal can proceed.
6.29.2008 11:45pm
ratel (mail):
I believe there is a recognized exception to mootness doctrine for situations that are "capable of repetition evading review." In this case, because the law remains on the books, the government could unilaterally resume enforcement of the law at any time after the case was dismissed. Then if the city was sued again they could repeat the process, by once again suspending enforcement of the law until the case was dismissed.
6.29.2008 11:49pm
tcg:
Ratel,

Yes, such a doctrine exists. However, all indications to date are that the town is making a good faith effort to comply with the Constitution, pending a final decision on the constitutionality of local handgun bans outside of federal districts. There is no reason for a court to think that the ban will be re-instated as soon as a lawsuit has concluded with Chicago's ban being ruled unconstitutional.
6.30.2008 12:36am
subpatre (mail):
This is going to be interesting unless the District and Appeals Courts act decisively and squash this foolishness. The city of Chicago declared they would rather fight than allow individuals to have firearms; they have the (peoples') money to carry it back to the SC.

City officials expressed confidence the city would prevail in any court challenge, asserting, among other things, that the 2nd Amendment as part of the Bill of Rights restricts the federal government and does not apply to state and local governments.

Benna Solomon, deputy corporation counsel for the city, asserted that the Supreme Court decision applies only to the federal government. . . . "The court notes that it is not required to consider whether the 2nd Amendment also applies to state and local government, and therefore it does not consider that question," Solomon said. "The court had previously held on three occasions the 2nd Amendment does not apply to state and local government, and it does not reconsider or even address that issue in this opinion." --Chicago Tribune June 26, 2008
6.30.2008 12:50am
Originalism Is Useful (mail):
Voluntary cessation

Where a defendant is acting wrongfully, but ceases to engage in such conduct once a litigation has been threatened or commenced, the court will still not deem this correction to moot the case. Obviously, a party could stop acting improperly just long enough for the case to be dismissed and then resume the improper conduct. For example, in Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167 (2000), the Supreme Court held that an industrial polluter, against whom various deterrent civil penalties were being pursued, could not claim that the case was moot, even though the polluter had ceased polluting and had closed the factory responsible for the pollution. The court noted that so long as the polluter still retained its license to operate such a factory, it could open similar operations elsewhere if not deterred by the penalties sought.
6.30.2008 1:10am
Tony Tutins (mail):
ratel, I imagine that if Chicago loses at the Supreme Court and the right is incorporated, Wilmette will simply fail to start re-enforcing their ban.
6.30.2008 3:22am
Tony Tutins (mail):
The 7th Circuit interpreted two state law issues: did the handgun ban violate Illinois' right to keep and bear arms provision, and did Morton Grove have the power under the state's municipal home rule statutes to ban handguns (or was it preempted by the state). The answers were no and yes. They did not want to touch the issue of incorporating the Second Amendment against the state of Illinois -- the court thought that argument was frivolous, because Presser had settled the issue of (non)incorporation, and Miller had limited the meaning of the right.
6.30.2008 3:28am
tcg:
I think we're starting to talk past each other on the issue of mootness. I completely agree that if the city stopped just because of a lawsuit against them and only them, the court would be justified in moving forward with the case. However, I'm not so sure that it's clear that they suspending enforcement (and considering repealing the ban altogether) because of the lawsuit. It seems to me that they're changing course because of Heller. So again, there's no evidence right now to suggest that they're doing anything but acting in a good faith effort to comply with the Constitution.

As David said in his post, if Chicago wins, the towns will be free to re-instate their bans and resume enforcement. If Chicago loses, there's no indication that the towns will try anything shady like re-instate a ban that is clearly unconstitutional. They'll have saved themselves a boat-load of legal expenses, and it's the prudent thing for the towns to do.

There's no real advantage to the pro-rights side to have all of the suits move forward at the same time, so long as the bans aren't being enforced. We'll get a pretty answer from the Chicago case. If Chicago loses, challeneges against the other towns' bans will be pretty simple and shouldn't even have to rise above the district court. It just makes sense all around for the bans to be stopped while we're in wait and see mode. I'm sure the towns themselves are thinking the same thing.
6.30.2008 9:35am
Ben P (mail):

even though the polluter had ceased polluting and had closed the factory responsible for the pollution.


This isn't friends of the earth. Unless I misread earlier the mayor of Morton Grove said they would "repeal" the law.


Friends of the Earth would be closer if the Mayor said "The law will remain on the books, but I have no intention of enforcing it."

That could potentially fail to moot the case because enforcement could easily recontinue at a future point.

If the law is truly repealed, enforcement simply could not continue unless a new law is passed, that would clearly moot the case.
6.30.2008 10:14am
anonymous_lurker (mail):
Why is it that supposed conservatives seemingly only applaud gun rights expansions as Constitutional values being restored, but they never ever make a peep about any other personal liberty? This isn't a snark, I'm really curious. It seems like the only Constitutional right worthy of conservatives' time is 2nd Amend. What about other gov't limits? Those never seem important.

And you can't argue that gun rights limit the scope of the gov't. As has been said before, no one expects individuals to out firepower the gov't, and hardly anyone supports armed rebellion (except for some white supremacists in the mid-west).

I'm honestly curious why the 2nd Amendment is seemingly the only right that anyone here seems to care about.
6.30.2008 11:09am
Andy Freeman (mail):
> I'm honestly curious why the 2nd Amendment is seemingly the only right that anyone here seems to care about.

WRT the "Volokh Conspiracy" as a whole, the 2nd isn't the only right that anyone cares about. There are long and involved discussions on many rights. If you're not seeing them....

WRT this thread, it's about the 2nd amendment. Do you have some objection to single-topic discussions? (If so, I note that you haven't weighed in on gay marriage in this thread.)
6.30.2008 11:39am
Tony Tutins (mail):

they never ever make a peep about any other personal liberty?


The real question is why don't those who defend other liberties defend the individual right to arms? For instance, the ACLU does not merely neglect the Second Amendment right, they pooh-pooh it. Those who want to exercise unenumerated rights disparage the enumerated rights at their peril. The rights to keep and bear arms are part of the penumbra from which emanate rights such as sexual privacy and reproductive freedom.
6.30.2008 12:19pm
Jiminy (mail):
And the conspirators here also are big on the eminent domain cases like Kelo, so I don't agree with your characterization about this site vs govt limits.
6.30.2008 12:47pm
Dilan Esper (mail) (www):
Voluntary cessation doesn't moot a pending case by someone who was already injured or threatened with injury, but if there isn't a current prosecution, voluntary cessation can deny standing under City of Los Angeles v. Lyons by removing the threat of future injury.

I am not going to say that cessation of enforcement will 100 percent absolutely deny standing, but it certainly gives the city much better odds.
6.30.2008 2:58pm
JunkYardLawDog (mail):
Tony Tutins,

Its incorrect to state that Miller supported a collective rights theory to the RKBA.

Miller supports an individual rights view of the second amendment, but merely held that the arms protected by that individual right had to bear some relationship to militia weapons, and that without evidence to support a sawed off shotgun was a proper militia weapon then they ruled on the absence of the evidence that the sawed off shotgun was not protected under an individual rights view of the second amendment.

There was no evidence in the record about the sawed off shotgun because the defendant did not appear at the trial and presented no evidence. The only record was what the made by the government.

Says the "Dog"
6.30.2008 4:06pm
Tony Tutins (mail):
Dog -- Don't mistake me for the Seventh Circuit Court of Appeals. I was just trying to summarize Quilici v. Morton Grove.
6.30.2008 4:11pm
PersonFromPorlock:
anonymous_lurker:

Why is it that supposed conservatives seemingly only applaud gun rights expansions as Constitutional values being restored, but they never ever make a peep about any other personal liberty?

AL, try FreeRepublic (http://www.freerepublic.com), where you'll find 'conservatives' as blackhearted as the Left imagines 'em and 'conservatives' who worry about racial prejudice, property rights, freedom of speech, search and seizure...all going at each other hammer and tongs.

The thing is, the conservative world is, well, 'diverse'.
6.30.2008 5:56pm
Deoxy (mail):
anonymous_lurker,

There is quite a bit of discussion around here about many different rights.

Gun rights may actually get the most attention, but property rights are probably a close second, and speech rights discussions are fairlty common as well (almost any right is fair game and gets hit from time to time).

Speech rights have been championed by many, MANY groups and are in pretty good shape, really (McCain-Feingold and other such nonsense being the only substantive threat at the moment), and many other rights are in similar shape.

But gun rights (and, to a lesser extent, property rights) have been repeatedly bludgeoned nearly to death. Rights not even mentioned in the Constitution ("the right to privacy", for one easy example) get far more protection and respect that the clearly stated, gets-its-own-amendment right to keep and bear arms.

This makes for a much more interesting and meaningful discussion than, say, the right to not have to board government soldiers for free.
7.2.2008 12:34pm
Oren:
Speech rights have been championed by many, MANY groups and are in pretty good shape
Yeah, no, threats, really, whatsoever.
7.3.2008 5:39pm