Chicago Defies the Second Amendment

Steve Chapman

11/27/2008 12:01:00 AM - Steve Chapman

Since the Supreme Court upheld the individual right to own guns last summer, one municipality after another with handgun bans has faced reality. Washington, D.C., which lost the case, changed its law. Morton Grove, Ill., repealed its ban. So did neighboring Wilmette. Likewise for Evanston. Last week, Winnetka followed suit.

Then there is Chicago, which is being sued for violating the Second Amendment but refuses to confront the possibility that what the Supreme Court said may apply on this side of the Appalachians.

When it comes to firearms, Chicago Mayor Richard Daley is no slave to rationality. "Does this lead to everyone having a gun in our society?" he demanded after the ruling came down. "Then why don't we do away with the court system and go back to the Old West, where you have a gun and I have a gun and we'll settle it in the streets?"

From listening to him, you might assume that the only places in North America that don't have firefights on a daily basis are cities that outlaw handguns. You might also assume that Chicago is an oasis of concord, rather than the site of 443 homicides last year.

So it's no surprise that Daley refuses to make the slightest change in the handgun ordinance, preferring to fight the lawsuits filed by the National Rifle Association. He is not impressed that 1) the law almost certainly violates the Constitution, which elected officials are supposed to uphold, and 2) it will cost taxpayers a lot of money to fight lawsuits the city is bound to lose.

The Chicago ban dates back to 1983 -- a time when no one had to worry about the forgotten Second Amendment. The ordinance prohibited the possession of all handguns (except those acquired before the law took effect).

It had no obvious benefits: Homicides climbed in the ensuing years and by 1992 were 41 percent higher than before. But the policy rested undisturbed until last summer, when the Supreme Court ruled that Washington's complete ban on handguns violated the individual right to use arms for self-defense in the home.

If that logic applies to the D.C. statute, it very likely applies to Chicago's law. The city, however, notes that the nation's capital is a federal enclave, and that the court did not say that states must respect the Second Amendment. That's true. The court's ruling also did not say that China is in Asia, which doesn't make it part of South America.

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.