In the wake of the United States Supreme Court’s decision in District of Columbia v Heller and an ensuing federal lawsuit filed against the City of Evanston challenging its ordinance banning handguns in the City, Evanston’s City Council is considering an amendment to its gun ordinance.
In Heller, the Court held that the Second Amendment to the Constitution guarantees an individual right to possess handguns. The Court struck down the District of Columbia’s laws (which were federal laws) banning the possession of handguns and requiring all firearms to be stored “unloaded and disassembled or bound by a trigger lock or similar device.”
The Court found, however, that the right to possess guns under the Second Amendment is not unlimited. The Court said its decision should not cast doubt on “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.” The Court also said that banning dangerous and unusual weapons, such as M-16 rifles and sawed-off shotguns, would be acceptable. The Court expressly said this list of “presumptively lawful” restrictions should not be viewed as exhaustive.
The proposed amendments to the City’s gun ordinance would make it unlawful to possess a handgun in the City except when the handgun is kept at the residence of the person for self-protection, provided the person possesses a current and valid Firearm Owner’s Identification card issued by the State of Illinois. The amendments would also prohibit persons from possessing a handgun in the City if they are under 18 years of age and the handgun is small enough to be concealed upon the person; if they are under 21 years of age and have been convicted of a misdemeanor other than a traffic offense or have been adjudged delinquent. Persons who are narcotics addicts or who have been a patient in a mental hospital within the past five years or are mentally retarded would also be prohibited from handgun ownership.
While these requirements would restrict the possession of handguns in the City, we all have to recognize that once a handgun is in a home, there is a risk that someone may use it on a policeman or fireman responding to an emergency at the home. There is a risk that one family member may use it on another family member in an angry moment or even by accident. There is a risk that a person may use it to attempt or commit suicide. There is a risk that someone may use it on the streets. These are substantial risks, each with devastating consequences.
The Supreme Court held in three cases decided in the late 1800s that the Second Amendment does not apply to the states. The Court in Heller did not overrule these cases, but made some comments which questioned their continued validity.
As the law now stands, though, the Second Amendment and the Court’s decision in Heller does not apply to Evanston’s gun ordinance and does not make it invalid. While many legal commentators predict the Court will ultimately hold that the Second Amendment applies to state and municipal laws, no one knows how or when that will play out. Before abandoning its current ordinance prohibiting handguns, members of City Council should carefully consider all the potential costs, risks and benefits, including the loss of human life. And in evaluating the cost of defense, Council members should determine whether Evanston, the City of Chicago and the Village of Oak Park could join together in defending their respective weapons ordinances and whether Evanston could obtain pro bono legal services.
We urge City Council to adhere to its current ordinance, which contains an outright ban of handguns (with certain exceptions) and to defend its ordinance in federal court.
If City Council decides not to defend its current ordinance, we think the restrictions contained in the proposed amended ordinance should go further than they do. We urge the City to ban semi-automatic handguns, even at residences. We urge the City to make it unlawful for a person under the age of 18 to possess a handgun; for a person convicted of a felony and certain misdemeanors, such as assault and battery and breaking and entering, to possess a handgun; for persons found guilty of domestic abuse or who are subject to an order of protection, to possess a handgun. We urge the City to impose requirements concerning the safe storage of handguns in a home. We also urge the City to impose its own licensing requirements and to charge handgun owners a licensing fee that would pay for the cost of maintaining the licensing program.
Chicago Mayor Richard Daley threw out the idea last week that people who insist on having guns in their homes might be required to have insurance to protect taxpayers from frivolous lawsuits. Maybe gun owners should be required to maintain insurance or to post a bond to provide a source of funds if their handguns were used to wrongfully injure someone.
The Legal Community Against Violence is preparing a model ordinance restricting the usage of handguns. Council members asked City staff to consult with an Evanston attorney who is working on the model ordinance. We encourage drawing on the expertise of that organization.