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Monday, June 30, 2008

Ind. Law - More on: Impact of the decision in Heller on Indiana (and Chicago)

Updating this ILB entry from June 27th, David G. Savage of the LA Tmes had an excellent analysis piece June 28th headed "Supreme Court gun ruling leaves questions: How far does the constitutional right to gun ownership extend? Is the right fundamental -- generally not subject to government rules? Or can it be strictly regulated?" A few quotes:

WASHINGTON -- The Supreme Court’s historic ruling this week that clarified Americans' right to own a gun for self-defense left a crucial question unanswered, one that will be resolved only after many years and a torrent of litigation, legal experts said Friday.

Is gun ownership a "fundamental right" under the Constitution, or something less? Put simply, is a gun akin to an automobile, a legal but dangerous product that can be strictly regulated by the government? Or is a gun more like a book, both legal and largely off-limits to government regulation?

"There's a lot that needs to be sorted out. The big question is: Is this like the 1st Amendment and the freedom of speech?" said John Eastman, dean of the Chapman University School of Law in Orange. He once was a clerk on the high court. * * *

The justices also barely touched on a threshold issue for future lawsuits.

The decision in District of Columbia vs. Heller did not say the 2nd Amendment applies to states and localities. Washington, D.C., is not a state.

Until the early 20th century, the Bill of Rights was assumed to limit only the federal government, not the states; now the presumption is that the Constitution protects Americans against the government at all levels -- federal, state and local. But the Supreme Court has not said the 2nd Amendment applies to the states.

"That's the next case to come up, but I think it's a foregone conclusion" that the 2nd Amendment will extend to state and local laws, said Washington lawyer Alan Morrison, who wrote the District of Columbia's opening brief defending its law when he was a city attorney.

In the wake of Thursday's ruling, Morrison said: "The bottom line is, it looks like a full-employment decision for lots of gun lawyers and state, federal and municipal lawyers."

An editorial today in the Fort Wayne Journal Gazette, however, states without qualification:
The ruling, however, will have little local effect in Indiana, where the state constitution establishes a right to own guns for self-defense in more precise language than the U.S. Constitution.
Leaving state/federal issues aside, what exactly does the Indiana Constitution provide? Art. 1, Sec. 32:
The people shall have a right to bear arms, for the defense of themselves and the State.

Posted by Marcia Oddi on June 30, 2008 09:48 AM
Posted to Indiana Law