On June 27, the National Rifle Association (NRA) and three of its members filed suit in federal court against the City of Evanston and Mayor Lorraine Morton, seeking to knock out Evanston’s ordinance banning handguns, with some exceptions, in the community.

The suit was filed the day after the United States Supreme Court rendered its decision in District of Columbia v. Heller (the Heller case).

That decision held that a District of Columbia ordinance banning handguns and requiring that licensed handguns kept in the home be rendered inoperable violated the Second Amendment to the United States Constitution.

Evanston residents Jonathan Blair Garber, Alan L. Miller and Kevin P. Stanton, members of the NRA, filed the suit as co-plaintiffs with the NRA. Other similar lawsuits have been filed across the country in municipalities with handgun bans similar to Evanston’s.

The suit alleges that Evanston’s ban on handguns violates the Second and Fourteenth Amendments to the U.S. Constitution, deprives the defendants of equal protection and violates the federal Firearms Owner Protection Act.

The suit asks that Evanston’s ordinance prohibiting handguns be declared “null and void” and seeks to enjoin City officials from enforcing it.

The City Ordinance

Section 9-8-2 of the City code states “No person shall possess, in the City of Evanston any handgun, unless the same has been rendered permanently inoperative. (Ord. 42-0-05).” Violations are deemed misdemeanors and are punishable by a minimum fine of $1,500, or six months’ imprisonment, or both. Handguns seized for violations will be used as evidence then turned over to the police for destruction.

In writing a dissenting opinion in Heller, Justice Stephen Breyer referred to the Evanston ordinance as being similar to the Washington, D.C. ordinance. He termed the ordinance a “proportionate response” to the problem of urban crime, a view rejected by the majority.

The Heller Decision

Justice Scalia parsed the Second Amendment – “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” – to apply to an individual’s right to keep weapons, specifically handguns, in the home “for lawful purposes,” such as self-defense.

The Court held that the right to “keep and bear arms” is an individual, not a collective, right and that it is not related to service in a militia; and that self-defense is a core right in this country and that handguns are the weapon of choice for self-defense. The Court recognized, however, that the Second Amendment has limits. The Court said the Constitution does not protect the ownership of certain types of weapons and that some regulation of firearms is appropriate.

Protected Weapons

The Constitution protects a “class” of weapons, the Court held, the class consisting of the sorts of weapons that a person might typically bring from home to join a militia. “[T]he conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty,” Justice Scalia wrote.

Handguns constitute a class of weapons that is protected by the Constitution, although “dangerous and unusual weapons” would fall outside the scope of protection, the Justice continued. He cited M-16 rifles and sawed-off shotguns as examples of weapons not protected by the Second Amendment.

Self-Defense

The right of self-defense is also a central part of the Second Amendment, Justice Scalia wrote. “[T]he inherent right of self-defense has been central to the Second Amendment right.”

Enshrining the right of self-defense in the Constituion, Justice Scalia wrote, “necessarily takes certain policy choices off the table.” Banning handguns, which are “overwhelmingly chosen by American society” for the lawful purpose of self-defense “amounts to a prohibition of an entire class of ‘arms,'” which violates the Second Amendment, Justice Scalia wrote. “The protection extends, moreover, to the home, where the need for defense of self, family and property is most acute,” he wrote.

A law that requires that handguns be rendered inoperable before they can be kept in the home “makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional,” the Court found.

Permissible Regulation

Certain types of regulations would still be permissible, Justice Scalia wrote, such as banning concealed weapons and the “longstanding prohibitions on the possession of firearms by felons and the mentally ill. …”

In addition, laws that forbid firearms in “sensitive places such as schools and government buildings” would remain valid, he wrote, as would “laws imposing conditions and qualification on the commercial sale of firearms.” A footnote to this section of the opinion states, “We identify these presumptively lawful regulatory measures only as examples.”

Because the case arose in the District of Columbia, where federal law applies, the Court did not decide whether the Second Amendment, and thus the Heller decision, applies to state or local laws. In other cases, though, the Court has held that the First, Fourth, Fifth, Sixth, Seventh, Eighth and Ninth Amendments to the Constitution do apply to state and local laws.

Evanston Could Defend Its Ordinance

Evanston’s gun ban still stands, corporation counsel Jack Siegel told the RoundTable on July 1. “As of this time, there has been no determination that our ordinance is invalid in any way,” Mr. Siegel said.

Nor, he said, need the City Council take any action to change it. “It is not incumbent upon the City to take any different action with respect to the ordinance.”

Police Chief Richard Eddington told the RoundTable that after the Council has addressed the gun-ban ordinance, “we’ll chart a course.” Asked his philosophy on handgun bans, he said, “In some ways the Supreme Court has forced us past the philosophical to the nuts and bolts of what we can do.” He added, “My personal preference is somewhat irrelevant. What I am expected to do is direct the officers of the Evanston Police Department to follow the law. ”

Aldermen met in closed session Monday night but afterward declined to comment on the meeting, the gun ban or the lawsuit. For updates, visit evanstonroundtable.com.

Handgun Incidents in Evanston

             2004  2005  2006  2007

Incidents  131    107   107     37

Injuries      11        7      6     12

Deaths        1        1      1       2

Arrestees   28       28    33     32

Source:  Evanston Police Dept.