Judge: Second Amendment Includes the Right to Purchase Guns

In a ruling earlier this month, a U.S. District judge pointed out once again it is impossible to ban guns in the United States.

In the 1980s, Chicago passed an ordinance which did not allow handguns to be registered within the city, essentially making it a crime to possess one within city limits. The ordinance remained in place even after the Supreme Court’s 2008 decision in District of Columbia v Heller in which it ruled that the Second Amendment included the right to self-defense and that handguns were a reasonable means of doing that. It would take the Court’s 2010 ruling in a case specifically targeting the city’s ordinance to end the more than thirty year ban. In McDonald v Chicago the Supreme Court expanded on its Heller decision by claiming that the right to possess arms for self defense was a fundamental right protected under the Fourteenth Amendment.

In response, that same year Chicago passed another ordinance outlawing the private transfer of guns by owners and prohibiting gun shops from operating within the city.

In spite of its reputation as one of the most violent cities in the nation (a distinction recent crime statistics are showing is inaccurate) Chicago has historically had some of the strictest gun laws in the country. This has inevitably made it a target of the National Rifle Association. It was unsurprising when a coalition of concerned citizens and gun dealers immediately filed suit claiming violations of their Second Amendment rights.

The city argued that by banning sales of firearms within the city deterred criminals from trying to buy them since gang members would be unlikely to try and purchase them from suburban shops. They also argued that the shops were frequent targets of burglars and that gun dealers were not closely monitored by the federal government.

None of these arguments persuaded U.S. District Judge Edmond Chang, who ruled that the ban on gun shops was unconstitutional. He acknowledged the city’s fundamental duty to combat gun violence and protect its citizens, but said, “Chicago’s ordinance goes too far in outright banning legal buyers and legal dealers from engaging in lawful acquisitions and lawful sales of firearms, and at the same time the evidence does not support that the complete ban sufficiently furthers the purposes the ordinance tries to serve.”

To come to his conclusion, Chang looked at the historical argument as to whether the activity being banned – the selling of firearms – was outside of the scope of the Second Amendment, a requirement after the Heller decision. In this, the city failed to make its case.

As he writes in his order granting the plaintiffs’ motion for summary judgment, “But on the other side of this case is another feature of government: Certain fundamental rights are protected by the Constitution, put outside government’s reach, including the right to keep and bear arms for self-defense under the Second Amendment. This right must also include the right to acquire a firearm.”

Now we know that the Second Amendment not only guarantees the right to bear arms for a well-armed militia, but also for self-defense and it also protects the right to buy them, just as the founding fathers intended.

Still, the judge says the city still has a right to set regulations that do not violate the Second Amendment. While citizens have a right to acquire firearms, he writes that the right “is far from absolute: There are many long-standing restrictions on who may acquire firearms (for examples, felons and the mentally ill have long been banned) and there are many restrictions on the sales of arms (for example, licensing requirements for commercial sales).”

It is for that reason the judge has stayed enforcement of his order to give the city time to enact sales and transfer restrictions that do not amount to a complete ban. They have six months.