Courts should treat gun rights as liberally as abortion rights
In light of the Supreme Court’s abortion decisions, Chicago’s gun regulations may place substantial obstacles in the path of those wishing to exercise their Second Amendment rights, so as to render the Windy City’s regulatory scheme unconstitutional.
In the abortion case Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court applied the “undue burden” test in reaffirming the holding in the famous case of Roe v. Wade. The Court said that where state regulation imposes an undue burden on a woman’s ability to exercise her right to choose, “the power of the State reaches into the heart of the liberty protected by the Due Process Clause.” Strong words. The Court defined an “undue burden” as “shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
So how does this relate to gun control measures? Based on the Court’s language, serious consideration should be given to the idea that when “a state regulation has the purpose or effect of placing a substantial obstacle” in the path of a law-abiding citizen seeking to obtain a firearm, the power of the state has indeed “reache[d] into the heart of the liberty protected by the Due Process Clause.”
Let’s break this down: According to the Supreme Court, a woman has the right to choose to have an abortion. Therefore, says the Court, the government may not place a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. In other words, it is a constitutional violation to make it substantially difficult for a woman to exercise her right to choose.
What, you might ask, does the Supreme Court consider to be an undue burden on a woman’s right to choose? So far, it has concluded that a state regulation that would require her to notify the father of the fetus before having an abortion is in fact an undue burden on the exercise of her right.
Now, the Supreme Court has also made clear, in the Heller and McDonald cases, that the Second Amendment gives law-abiding American citizens the right to keep and bear arms in order to protect themselves and their homes. Given the existence of this right, and assuming that it is at least as important as a woman’s right to choose (after all, it’s in the Bill of Rights), a quick look at the hoops that one must jump through in order to legally obtain a firearm in Chicago should make clear that Chicago’s regulations are indeed undue burdens on the right of individuals to keep and bear arms.
For a law-abiding Chicago resident to legally possess a firearm, he must do the following:
● Buy passport pictures (about $10) to attach to an Illinois Firearm Owners Identification (FOID) card application, along with a $10 money-order.
● Wait for his FOID card application to process and his card to issue — right now, this takes about five months.
● Once he receives his FOID card, he must pay for a state-certified firearms instruction course ($130-$250, depending on whether he’s looking to obtain a home or carry permit).
● Once he completes the course, he must have the state-certified instructor sign an affidavit stating that the applicant has complied with Chicago’s training requirements.
● He must then complete and submit a Chicago firearms permit with a $100, non-refundable application fee (which must be paid every three years in order to maintain legal status), along with new passport photos (about $10), and wait for the application to process and the permit to issue (which should take about two weeks, but then again, Illinois’ FOID card application says that applicants should expect their permits in 60 days).
● Once his permit has been issued, he can purchase a weapon. However, the City of Chicago has taken 300+ gun manufacturers off the table, limiting choices to some of the most expensive guns around.
● After purchasing a weapon, he must register the weapon with the city ($15 fee).
All in all, the process will take about six months and will cost anywhere from $275-$395 (not including the firearm, ammunition, or background check), which, reasonable people would admit, constitutes an undue burden (at least by Supreme Court standards) on the exercise of the Second Amendment right. Additionally, the regulations are not very helpful to someone living paycheck to paycheck who wants to exercise her right to self-protection now.
Abortion isn’t the only right that the Supreme Court has protected by using this sort of undue burden standard to find a regulation unconstitutional. In Shapiro v. Thompson, a case concerning whether a state can deny welfare assistance to residents who have not resided within its jurisdiction for at least one year, the Supreme Court protected the right to travel, stating, “The nature of our Federal Union and our Constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.” (emphasis added)
So here’s the $60,000 question: Why should unduly burdensome regulations that place obstacles in the path of those looking to exercise one right be struck down while equally burdensome regulations that infringe on another right are upheld?
All of this is to say that if the right to choose is important enough to warrant the determination that the government cannot place substantial obstacles in the way of a woman who wishes to exercise that right, then the rights afforded to us by the Second Amendment ought to be given the same protections. At the very least, legislatures ought to explain why the right to keep and bear arms is less deserving of protection from unduly burdensome regulations than a woman’s right to choose.
Rafael Mangual (firstname.lastname@example.org) works on the communications staff of The Heartland Institute.