Once upon a time, the Bill of Rights restricted only what the federal government could do: States were free to restrict free speech, conduct unreasonable searches and impose cruel and unusual punishments. But nowadays, the court says that because of the 14th Amendment, passed after the Civil War, states must respect virtually all the rights set out in the Constitution.
There is no reason to think the justices would exempt the Second Amendment from that rule. Ronald Rotunda, a constitutional scholar at Chapman University law school, thinks the Chicago ban has no more than a one in five chance of surviving court review.
That might be worth the gamble except for all the money the city is asking to be relieved of. The losing side would not only have to cover the costs of its own lawyers but also pay the winning attorneys. In the D.C. case, the amount has not been settled, but the lawyers who handled the suit asked the court for nearly $3.6 million, while Washington offered some $800,000. So if Daley insists on fighting all the way to the Supreme Court, the total tab will probably run into multiple millions.
The city says this is not necessarily money that can be saved, since even a revised ordinance could face a court challenge. But sensible changes might deter opponents from pursuing a lawsuit, and if not, at least the new version would stand a good chance of being upheld. Judging from its lawsuit, the NRA is aiming only at eliminating the city's total ban on handguns -- which is what the Supreme Court will almost surely demand anyway.
Daley's recalcitrance may be viscerally satisfying to him and some others, but it doesn't change the choice the city faces. It can change the law now or it can change it later. Later will be a lot more expensive.
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