Accordingly, the States have an interest in ensuring that citizens who must travel in the course of their personal or professional lives remain free from unconstitutional arrest and prosecution for engaging in their right to self-defense by carrying properly-licensed weapons." p. 2 The common thread in these transformative events in our Nation’s history was the fundamental importance of the right to keep and bear arms as the ultimate guarantor of all the other liberties enjoyed by Americans. The source of the threat to liberty shifted from the British Crown during the Founding to oppressive local governments in the post-Civil War era, but the cure remained the same: recognition and enforcement of an individual right to keep and bear arms, as an essential component of the natural right of self-preservation and the right of “resistance . . . to the violence of oppression.” p. 5-6 For the vast majority of Americans who do not live in a federal enclave, the stakes involved in this case could not be higher. If Chicago’s ban is upheld, it will confirm that local governments, unrestrained by the Second Amendment, may deny American citizens what they could not be denied by the federal government: the right to possess “the most preferred firearm in the nation to ‘keep’ and use for the protection of one’s home and family.” ... For untold numbers of Americans, including the millions of residents of Chicago, such a result will render the Second Amendment—aptly described as the “the palladium of the liberties of the republic,” ... —effectively meaningless. p. 9-10 To begin with, the federalism concerns expressed below are based on the mistaken premise that the Second Amendment protects state militias against federal interference. Id. at 859. Heller expressly rejected the argument that the Second Amendment addressed any concern about federal control over state militias. p. 21 To be sure, amici States agree that “[i]t is one of the happy incidents of the federal system” that each State may “serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (cited in Nat’l Rifle Assoc., 567 F.3d at 860). But the discretion of state and local governments to explore legislative and regulatory initiatives does not include “the power to experiment with the fundamental liberties of citizens safeguarded by the Bill of Rights.” Pointer, 380 U.S. at 413 (Goldberg, J., concurring). As the Court stated in Heller, “[t]he very enumeration of the right takes out of the hands of government . . . the power to decide on a case-by-case basis whether the right is really worth insisting upon.” 128 S. Ct. at 2821. Just as local governments cannot constitutionally act as “laboratories” for initiatives to abrogate their citizens’ right to free speech or their freedom from unreasonable searches and seizures, nor can they nullify the fundamental right to keep and bear arms secured by the Second Amendment. p. 22-23 Many firearms regulations would plainly survive Second Amendment scrutiny, such as “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” p. 23 Indeed, Heller made clear that the Second Amendment protects an individual right to keep and bear any weapons that are “in common use” by Americans—that is, the “sorts of lawful weapons that they possessed at home,” and that they could therefore bring with them if called to militia duty. p. 25 In short, Chicago fails to recognize that Americans’ right to possess lawful weapons in common use has remained implicit in the concept of ordered liberty, even when those weapons could not be “useful against modern-day bombers and tanks” and therefore would be of limited efficacy in modern militia service. p. 27 As the submission of this brief further demonstrates, Chicago’s position that the right to arms is of little importance, and may be abrogated at will by local government, is directly contrary to the view of the majority of the States. p. 29 ******************************************************************* Professor Joseph Olson, J.D., LL.M. o- 651-523-2142 Hamline University School of Law (MS-D2037) f- 651-523-2236 St. Paul, MN 55113-1235 c- 612-865-7956 [email protected] http://law.hamline.edu/node/784
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