Critical Second Amendment Ruling

[Tim Nunan]

http://www.nraila.org/news-issues/news- ... -arms.aspx

Fairfax, Va. – The United States District Court for the Northern District of Illinois ruled today that it is unconstitutional for Chicago to treat people with non-violent misdemeanor convictions the same as convicted felons. The NRA-supported case, Gowder v. Chicago, involves plaintiff Shawn Gowder, who was convicted as a first-time offender for mere possession of a firearm in violation of Illinois law in 1995. His misdemeanor record did not block him from getting a state Firearm Owner’s Identification card, so he could still legally possess a gun in Illinois.

Nonetheless, when Mr. Gowder, who lives in a high crime area of Chicago, began the process to legally acquire a handgun to keep in his home for self-defense (a process required following the McDonald decision), the Chicago police denied his application. Mr. Gowder sued the city, maintaining that Chicago’s law banning non-violent misdemeanants from possessing guns in their homes for self-defense is unconstitutionally vague, and that it violates the Second Amendment.

"This ruling sends a powerful message that the Second Amendment cannot be eliminated by a city ordinance," said Chris W. Cox, executive director of NRA's Institute for Legislative Action. "This ruling, in its defense of the Second Amendment and its call for clarity on this issue, shines a light on the long-running efforts of the City of Chicago to deny residents the right to keep firearms for self-defense. This ruling is a victory for the people of Chicago and for gun owners everywhere."
Federal District Judge Samuel Der-Yeghiayan found the city’s ordinance unconstitutionally vague because it “does not provide a person of ordinary intelligence a reasonable opportunity to know what is prohibited.” That’s because the ordinance denies permits to persons convicted of “unlawful use of a weapon,” but while Mr. Gowder was convicted under a state law that refers to “unlawful use of a weapon,” that law also applies to people who merely possess firearms.

The court also agreed with Mr. Gowder’s Second Amendment challenge, finding there was no evidence that Mr. Gowder is “a risky person or embodies the type of violent citizen” not entitled to exercise the right to arms. And as the court pointed out, non-violent misdemeanants were not historically prohibited from possessing guns, either in 1791 when the Second Amendment was passed or in 1868 when the Fourteenth Amendment applied the Second Amendment to the states. In a thorough and scholarly analysis, the court made clear that it would reach this same conclusion under any standard of review that might be applied; however, the Court rejected an intermediate level of scrutiny for infringements on the core Second Amendment right, holding that those should be subject to the highest level of review.

Other provisions of Chicago’s ordinance remain under attack in the NRA-supported case of Benson v. City of Chicago, which is now pending before a different judge in the same court.