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.
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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?
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.
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.
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.
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.
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.
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.
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.
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.)
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.
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.
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"
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'.
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.
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