The responsible gun ownership ordinance and novel textual questions about the Second Amendment.

• Author: McGovern, Owen

1. INTRODUCTION

   In the wake of District of Columbia v. Heller (3) and McDonald v. City of Chicago, (4) the City of Chicago promptly amended the Responsible Gun Ownership Ordinance (the Ordinance) to further its interest in protecting the public welfare and safety. (5) The Ordinance immediately generated federal lawsuits alleging that several provisions violate fundamental rights under the Second Amendment. (6) The Second Amendment provides:

   A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. (7) The Chicago Ordinance is particularly worthy of evaluation for three reasons. First, now that the Second Amendment has been incorporated against the states, (8) these suits are the first in the wave of gun-control litigation that has been predicted since Heller was decided. (9) Second, the new Ordinance replaced the provisions struck down in McDonald, rendering it particularly relevant for evaluating the implications of that decision. (10) And third, the Ordinance--as originally amended (11)--contained several provisions that implicate previously unexamined limits to the text of the Second Amendment.

   Until recently, scholarship has focused on whether the Second Amendment guarantees an individual right to bear arms and whether that right is incorporated against the states. (12) As those questions have now been resolved in favor of an individual right and incorporation, states are left scrambling to define the line between a legitimate exercise of their police power and infringement on the fundamental rights of their citizens. The new Ordinance is a highly visible example of this kind of legislation. A textual analysis (13) of the rights protected by the Second Amendment in this context may be beneficial in providing guidance to other states as they seek an understanding of the appropriate reach of the police power.

   In Heller, the Court engaged in an in-depth analysis of the meaning of the Second Amendment and answered a number of the preliminary questions needed to evaluate these provisions. (14) However, many questions remain unanswered. Part II of this Comment will summarize the Heller decision, highlighting the conclusions reached and emphasizing the questions that remain unanswered. It will also briefly recap McDonald, which incorporated the Second Amendment against the states, and highlight the points the Court found particularly important in both decisions. Part III will attempt to use the original understanding of the text of the Second Amendment to answer key questions left open by Heller. It will then apply those answers to the new Ordinance to evaluate how the provisions will fare under constitutional scrutiny. Finally, Part IV will put the analysis in a broader context, focusing on the implications for legislatures attempting to regulate firearms after Heller and McDonald and identifying which concerns must be respected as central to effective exercise of the Second Amendment right.

   This Comment will conclude that the recently enacted Responsible Gun Ownership Ordinance is likely unconstitutional, as it fails to respect the activities protected by the Second Amendment and intrudes upon concerns that were central to the Amendment's adoption.

2. BACKGROUND

   1. DISTRICT OF COLUMBIA V. HELLER

      In Heller, the Supreme Court squarely addressed the meaning of the Second Amendment (15) and determined that it "guarantee[s] the individual right to possess and carry weapons in case of confrontation." (16) This conclusion resolved the longstanding debate over whether the Second Amendment guarantees an individual right, or whether "the right of the people" was premised upon membership in a militia. (17)

      The determination that the Second Amendment protects an individual right and the reasoning in support of that conclusion have significant implications for the meaning of the provisions within the Second Amendment. These provisions, in turn, are essential to understanding the scope of the Second Amendment's protection and evaluating the constitutionality of the Chicago Ordinance and future attempts by legislators to restrict the right to keep and bear arms. As such, it is important to understand precisely what the Supreme Court determined in Heller, precisely which questions the Court answered, and precisely which questions were not addressed.

      1. The Right of the People

         The Court in Heller determined that the phrase, "the right of the people," unambiguously referred to an "individual right[], not 'collective' rights, or rights that may be exercised only through participation in some corporate body." (18) This determination was made through reference to other uses of "the people" in the Constitution, which always refer to an individual right. (19)

         This understanding has significant implications for the meaning of the rest of the Amendment, particularly the Militia Clause. Since the "militia" consisted of "a subset of 'the people'--those who were male, able bodied, and within a certain age range," (20) membership in the militia was an inherent characteristic, not an organizational construct. This means the Amendment's scope reaches beyond the militia context to "all members of the political community." (21) The majority's understanding of the Second Amendment as protecting an individual fight is the key difference underlying its disagreement with the dissent in Heller, and can be seen throughout the Court's interpretation of each provision.

      2. To Keep and Bear Arms

         The Court then addressed the substance of the protected right "to keep and bear Arms." Eschewing the dissent's suggestion that "to keep and bear Arms" was a term of art, (22) the majority opinion addressed the phrase as two separate actions: to keep arms and to bear arms. Before addressing the verbs, however, the Court addressed their object: "Arms." (23)

         i. The Meaning of "Arms"

         The Court in Heller determined that the meaning of the term "Arms" has not changed since 1791, and "extends ... to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." (24) The term is not limited to arms used in a military context, (25) but extends to "any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another." (26)

         As used in the Second Amendment, however, the term "Arms" is not given the maximum scope suggested by its dictionary definition as "any thing that a man ... useth ... to cast at or strike another." (27) Rather, the term "Arms" has been understood to encompass weapons in the common usage. (28) This common-usage understanding includes handguns but excludes "dangerous and unusual weapons," such as M-16 rifles. (29) The Court noted that this restriction on the term "Arms" creates tension with the concept of a militia capable of effective resistance to tyrannical oppression, particularly given the capabilities of modem militaries. (30) Despite this tension between the Amendment's purpose and its practical application, the Court deferred to the limitation on the meaning of "Arms" adopted in United States v. Miller, (31) which the Court interpreted as holding that "the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes." (32)

         While Heller established the form of "Arms" referenced in the Second Amendment, it did not answer the question of whether "Arms," as applied to an individual, refers to the possession of a single weapon for use in his defense, or multiple weapons, as the plural form of the term "Arms" might suggest. (33) This question will be addressed in Part III.A.

         ii. To Keep Arms

         After establishing the meaning of "Arms" and its restriction within the Second Amendment, the Court in Heller then evaluated what it means to keep arms. "[T]he most natural reading of 'keep Arms' in the Second Amendment is to 'have weapons."' (34) As the meaning of "Arms" was not limited to those weapons used for military service, the right to "keep Arms" was likewise unconnected to an organized fighting force. Rather, "'[k]eep arms' was simply a common way of referring to possessing arms, for militiamen and everyone else." (35) This is consistent with the Court's understanding of the "right of the people" as enshrining an individual right, as well as historical texts discussing the right to keep arms for individual defense. (36)

         The question that remains unanswered, however, is whether this right to keep arms for one's personal defense allows restrictions on the condition in which the arms may be kept. Heller established that the District of Columbia's requirement "that firearms in the home be rendered and kept inoperable at all times ... makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional." (37) The question raised by the Chicago Ordinance--which allows only one operable firearm in the home at a time--is whether it can require that all other firearms in a home be rendered inoperable if a single firearm is kept unlocked and ready for use. (38)

         iii. To Bear Arms

         Continuing with the substance of the Second Amendment, the Court determined that the term "to bear" carried the same meaning at the time of the Amendment's adoption that it does today: "to carry." (39) When used in conjunction with "Arms," however, the term has a more specific meaning: carrying arms for the purpose of confrontation. (40) As with the term "keep Arms," the right to "bear Arms" was not limited to a military context, but referred to the individual right to "wear, bear, or carry ... upon the person or in the clothing or in a pocket, for the purpose ... of being armed and ready for offensive or defensive action in a case of conflict with another person." (41) This definition sharply contrasted with the understanding adopted by the dissent, which gave "bear Arms" an idiomatic...