Institute for Justice Files Brief in Chicago Gun Ban Case; IJ Played an Integral Role in Challenge To D.C. Gun Ban Case District of Columbia v. Heller

John Kramer
John Kramer · February 9, 2009

Arlington, Va.—When is a case about guns not just a gun case?

The three consolidated cases in a federal challenge to gun laws in Chicago and Oak Park, Ill., are about much more than gun ownership, says the Institute for Justice. The cases may have broad implications for entrepreneurs and other small businesses who are trying to earn an honest living, but find oppressive and arbitrary state laws in their way. The case may set a significant precedent in how states may use their power to limit constitutionally enshrined rights that help define America as the land of opportunity.

Late last week, the Institute for Justice filed an amicus brief in an appeal to the 7th U.S. Circuit Court of Appeals of three consolidated lower court cases challenging laws that effectively prevent individuals from keeping firearms in their homes for self-defense—McDonald v. City of Chicago, National Rifle Association of America v. City of Chicago and National Rifle Association of America v. Village of Oak Park.

The Institute for Justice played an integral role in the successful challenge to the District of Columbia’s gun ban, which was litigated by former IJ clerk Alan Gura, IJ board member Robert Levy and IJ Senior Attorney Clark Neily, who, along with Institute for Justice colleague Steve Simpson, originated the case. Thanks to these three attorneys, and an amicus brief filed by IJ, the right to bear arms is now being seen in a very important legal context: one that starts to reestablish the Privileges or Immunities Clause of the 14th Amendment to the Constitution—a vital part of IJ’s effort to reinvigorate economic liberty and other basic rights.

Rather than discussing the details of the specific gun laws, the Institute for Justice’s brief focuses on whether people can enforce a right to keep and bear arms for self-defense against the states. In District of Columbia v. Heller, the U.S. Supreme Court pointed out that some 19th century cases, in which it said the 14th Amendment did not provide for any such right, had failed to engage in appropriate 14th Amendment analysis, but did not address whether the 14th Amendment should now be understood to provide such protection.

Enacted in the wake of the Civil War, the 14th Amendment is a critically important amendment to the U.S. Constitution that has been largely written out of existence by the Courts, which have failed to fulfill the robust role the Amendment was expected to fill in protecting individual rights from abuses by the states. This case is one of many means through which IJ is trying to restore the Amendment’s Privileges or Immunities Clause to its proper role in constitutional interpretation.

“The Institute for Justice’s brief provides extensive historical documentation establishing that the 14th Amendment’s Privileges or Immunities Clause protects individual rights including a right to armed self-defense,” said Clark Neily, an Institute for Justice senior attorney and author of the brief.

Chip Mellor, president and general counsel of the Institute for Justice, said, “The 14th Amendment was passed in response to the Black Codes adopted by many southern states after the Civil War. Under those codes, newly freed slaves were forced into circumstances that were nearly as bad as slavery. In some states, it was illegal for a black man to leave his employer’s property without permission; in others, blacks could be flogged for breaking a contract. Newly freed slaves and antislavery whites—including discharged Union soldiers—were essentially cut out of civil society: they were not allowed to practice many trades, to speak freely, or to keep or carry firearms. In some cases, antislavery whites were literally banished. The firearm bans contributed to the general terrorizing of the population: the same militias that disarmed people were often responsible for acts of shocking violence.”

The Institute for Justice’s brief points out that Congress responded to these atrocities with, among other things, the 14th Amendment, which was designed to prevent states from locking people out of civil and economic society. In addition to requiring evenhanded treatment, it protects through the Privileges or Immunities Clause certain substantive rights that, in the minds of its Framers, were inherent in what it meant to be a free man.

Neily said, “The 13th Amendment, which bans slavery, was concerned with whether people were legally free. The 14th is concerned with whether people are meaningfully free, and these cases provide an important opportunity for courts to finally give that Amendment its intended effect.”