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If you liked Mcdonald v. Chicago, you'll love Benson v. Chicago

Mayor Daley is caught during a pause in a recent speech about the McDonald decision.
Mayor Daley takes a moment to collect himself while announc-
ing that the City Council had approved his "Responsible Gun Own-
ership Ordinance" 45-0.  Less than a week later, the ordinance was
challenged in court by four Chicago residents and the IL Assoc. of
Firearms Retailers with the help of the National Rifle Association.
(AP Photo/M. Spencer Green)

Related Articles

Don't forget that Second Amendment Freedom Rally III is only two days away!  Come to downtown Chicago and show Mayor Daley a celebration of freedom. 


When the Supreme Court declared that Chicago and all other state and local governments were bound to respect the Second Amendment--having declared two years previously that the Second Amendment protects an individual right to keep and bear arms, it presented the world-famous song-and-dance troupe Mayor Daley and His Aldermen with a choice:

  1. Accept the court's authority and either give up on gun control or try to craft some of those "common sense" regulations that would not infringe upon an individual right "fundamental to the . . . concept of ordered liberty," or
  2. Defy the Supreme Court and go down in a blaze of authoritarian glory, fighting a  delaying action in federal court while praying desperately that something awful befalls one of the five Justices in the McDonald majority so that President Obama can appoint Rahm Emmanuel or someone to help overturn what one alderman called the court's "misreading of the law."

Mayor Daley and His Aldermen chose to announce that they had taken option number one while actually taking number two--to the surprise of no one familiar with Daley's personality.  The Mayor has long considered Chicago's ban on handguns to be "his" baby, and he seems to be taking the loss of the ban as personally as Chicago's infamous loss in the Olympic bid process. 

The main difference between McDonald and Benson may be how one-sided the new lawsuit is, based on the precedent set in McDonald.  The four plaintiffs, Brett Benson, Raymond Sledge, Kenneth Pacholski and Kathryn Tyler, are challenging the new ordinance on eight separate counts based on their various experiences as businessmen, educators, and residents of Chicago, while the IL Association of Firearms Retailers (ILAFR) are challenging the ordinance's total prohibition on firing ranges and gun shops within city limits.

The first count, for example, alleges that

. . . . the ordinance outlaws the exercise of the right to bear arms in self-defense even when one is in one's own garage, on one's own back porch, or on the steps leading to one's front door. 

The question is how Chicago can defend that provision.  They certainly cannot dispute that it's true--the ordinance clearly states:

"Home" means the inside a person's dwelling unit that is traditionally used for living purposes, including the basement and attic.  A "home" does not include (i) any garage, including an attached garage, on the lot, (ii) any space outside the dwelling unit, including any stairs, porches, back, side or front yard space, or common areas; or (iii) any dormitory, hotel, or group living, as that term is defined in 17-17-0102-A.

Incidentally, that definition of "group living" includes domestic violence shelters, which presumably means that even staff who live in such shelter homes for victims of domestic violence will be completely denied the right to keep and bear arms in their own defense.  But back to the lawsuit at hand, if Chicago can't argue that the allegation isn't true, can they argue that it's not an infringement on a basic civil right?

That argument is a little like the ancient joke about the fishing at any lake in the world:  "You should have been here last week!"  After the McDonald decision, the right to keep and bear arms is legally no different than the right to free speech or the right to be free from unreasonable searches and seizures.  Can you imagine any federal court ruling that Chicago could prohibit campaign signs for political candidates outside the "dwelling unit" or arrest someone who had a "Vote Out Daley" sign in his front yard?  Or uphold an arrest based on a warrantless search of a homeowner's attached garage because it's permissible to infringe on the Fourth Amendment's protections as long as they still apply "within the dwelling unit that is traditionally used for living purposes?"  How about a decision that a family staying in a hotel or a woman staying in a domestic violence shelter could be arrested for possessing a Qu'ran or a Book of Mormon?

It doesn't sound like the side of the case anyone would want to argue, does it? In a world where cases were always decided on their legal merits, Chicago wouldn't stand a chance.  But, as has been observed in this space before, Mayor Daley and His Aldermen consider this a game, and they're playing with other people's lives and other people's money.  And after all, maybe they know something the rest of us don't.


For more info: Look for Part II:  

If you liked Mcdonald v. Chicago, you'll love Benson, Count II: teenagers with guns


Welcome Des Moines Gun Rights Examiner Sean Mclanahan, who rounded up some of the fallout written after the McDonald decision was announced:

When governments disregard the liberties of the citizens, there are only three methods of recourse: litigation through the courts, a complete change of elected officials, or in the gravest extreme, armed removal of elected officials.  Since our elected officials do not appear to be afraid of the second action, and the third action is to be used only as a truly last resort, litigation (or fear of it) is the most effective tool currently available.  And the sad truth is that government entities bring this on themselves.


Comments

  • Carl from Chicago 4 years ago

    Fantastic writeup, Don.

    I am looking forward to hearing about Counts II-VIII.

  • sofa 4 years ago

    By denying fundamental rights to citizens - Daley is committing a felony. It's not over until he and his comrades are in jail.

  • sofa 4 years ago

    "Don't forget that Second Amendment Freedom Rally III is only two days away! Come to downtown Chicago and show Mayor Daley a celebration of freedom."

    Show compliance with non-laws by not bearing arms - OR -
    Celebrate freedom by bearing arms?

  • straightarrow 4 years ago

    No matter how many lawsuits are filed and even won against crap like this, the Daleys of the nation will replace the defeated law with another just as egregious, requiring another lawsuit. In this way they can extend this fight for centuries. No! That is not hyperbole, centuries.
    This will only be settled when there unpleasant ramifications are visited upon the abusers. Since we have no expectations, realistic or fanciful, of these ramifications being supplied by the justice system we have only one way to settle this issue peacefully. That is surrender. Let them have their way. That is the only avenue to peaceful resolution.
    If you find that to be anathema to your rights and our nation then the only way to settle this to its proper conclusion is force.
    Anything less will not work, because the tyrants lose nothing, even when they lose. Force will change the solution to that equation and as things now stand, it is the only thing that will.

  • Don Gwinn, Chicago Gun Rights Examiner 4 years ago

    Sofa, I get your point. Have you got anything more to say about it? I can't stop you if you'd like to go to downtown Chicago with a gun and get arrested. You can't force the rest of us to go get arrested on your behalf. That being the case, a couple of things are clear:

    1. If you want others to go out and get arrested for felonies on your advice, you're going to have to give them some kind of reason why that's a good idea.

    2. The strength of your belief in your position is somewhere above "Strong enough to advise other people to go to jail on my behalf" but somewhere below "strong enough to take my own advice." That doesn't make anyone else eager to follow it. Surely if it's such a good idea to go get yourself a felony arrest to protest a law that others are in the process of removing from the books anyway--by legal means--then you could cut out the middleman and do it yourself. By all means, don't let me hold you back as long as you're not going to hurt anyone.

  • madashell 4 years ago

    Don this is a good article and I agree that the new Chicago ordinances should fail in court.

    Have you heard if the NRA is going to work toward the repeal of the FOID card?

    A lot of the so called gun crime in Illinois is people with No propensity to do harm but they don’t have or have let their FOID card expire.

    That FOID card nonsense has got to go and I want the NRA/ISRA to focus on that issue and the excuse that it cant be done is bull

  • John 4 years ago

    Criminals do not want you to own guns. What is the mayor and his group hiding ? Better yet, what criminal activity are they involved in ?

  • Bluestone, PhD 4 years ago

    What is the matter with this Daly guy ?? I honestly think by looking at his eyes and movements. This man is mentally challenged. (No Offense) But he should not hold any kind of political office.

  • Bluestone, PhD 4 years ago

    The people of Illinois are great people and it is a great state. And should not be confused with Chicago. Just look what come out of Chicago; Daley, Odumbo, uh uh uh uh uh...

  • sofa 4 years ago

    Don, I offer no advice to anyone. Just a question: Who are you waiting for to tell you that you may keep and bear arms?

    No one wants anyone to get arrested. The rights exist, the Constitution and the Courts acknowledge it. Yet it seems that many people are still in denial that they have those rights.

    If history, reason, the itution, and the Court cannot convince you that you have the right - Then what will finally get you to finally accept that you do in fact have the right?

  • Luis 4 years ago

    Don, you ask (sarcastically) if the city can have anyone with a "Vote Out Daley" sign on his front lawn, arrested. Maybe not, but there are other ways the city can bring its boots down on somebody's neck. Consider:

    In his book "Boss", Mike Royko recounts how a restaurant owner named Harry, had an "Adamowski For Mayor" sign in the window of his restaurant. This was during the 1963 mayoral race between Daley the Elder and Ben Adamowski, the former Cook County State's Attorney. Harry's precinct captain visited him, and asked him to take the sign down. The owner refused. The next day, same thing happened.

    On the third day, the city building inspectors came around to Harry's restaurant. When they were done, they presented the owner with about $ 2,000 in alleged code violations. This was big money back in 1963.

  • Don Gwinn, Chicago Gun Rights Examiner 4 years ago

    Too true, Luis. The level of concern over attempts to block pro-gun organizing in Chicago probably seems paranoid to many (sometimes it feels paranoid to me while I'm explaining why I have the same concerns!) but recent experience makes paranoia seem like the best policy. More on that soon.

    Sofa, I'm not going to have a running argument with you about this. Your refusal to put up or shut up makes you irrelevant. As Otis McDonald said yesterday, "It's about who you are. What are you about? Do you care? I care. I showed it." The courage of your convictions is firm insulation against the slings and arrows of people who would rather brag about how extreme they are than do anything about it.

  • Ed O PLANET OF THE APES 4 years ago

    The SCOTUS gave you the right to bear arms and there is nothing pus-gutt can do about it.Go ahead and bear your arms (carry your guns)no one will be prosecuted or fined for this as it is your right under the Constitution (2nd amendment).

  • armed citizen st.louis 3 years ago

    You have to thank Mayor Daley, he single handedly is expanding 2nd Admendment rights for all Americans.

    Just think of the money for lawyers Chicago is spending as well.Very considerate of Daley to provide work for them.

  • Me 3 years ago

    AND..."the taxpayer pays for it"!!!

  • armed citizen st.louis 3 years ago

    I would like to comment about the "Peoples Democratic Socialist State of Illinois"

    I've read your state Constitution which subjects the right to bear arms as to the whim,descretion and control of the police forces.

    The entire "FOID" card branding system is much superior to any the KGB,Waffen SS, British Metropolian Police or any other tyrannical organization good dream of.
    You need to fix your Constitution and amend your laws, unless you like jack-booted-thugs ruling you!

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