Self-Defense vs.Municipal Gun Bans

info@reason.com (Robert VerBruggen) — Wed, 01 Jun 2005 00:00:00 EDT

On the night of December 29, 2003, Morio L. Billings was AWOL from the Army, in violation of his probation, and driving a BMW X5 sport utility vehicle he'd stolen less than a day earlier. The 31-year-old was staying with his mother in Chicago, but he wanted "blow and crack" badly enough to risk yet another jail stay. He had been taken into custody at least six times in 2003, with police alleging residential burglary, receiving stolen property (twice), driving while suspended (twice), auto theft (three times), and possession of a controlled substance.

Driving to Wilmette, a Chicago suburb, Billings parked the SUV on Laurel Avenue, a short walk from his target house on Linden Avenue, the same place he'd hit the night before. Last time he'd gone through the dog door, but he'd taken the keys (along with a Sony PlayStation 2, a TV set, and the SUV) before leaving. He "didn't care if anyone was home," he'd later tell police.

Entering the house through the kitchen door, Billings heard an alarm go off but proceeded to explore the home anyway. He saw a computer monitor and tugged on it.

Hale DeMar, a 54-year-old restaurateur who had recently separated from his wife but was watching their two children that night, was asleep upstairs when Billings entered his kitchen. DeMar had been unable to get his locks changed on short notice after the previous night's burglary (he would later be accused of not trying hard enough), but he had activated the security system. He had also put six hollow-point rounds into his Smith & Wesson .38 Special and placed it under his bed. It was one of two handguns he'd owned for more than 20 years without loading them; until the burglary he'd kept them locked in a safe, still in their original packaging.

Around 10:30 p.m. DeMar was awakened by the security system, which indicated a kitchen-door entry. Relying on the system to contact police, he grabbed the .38 and went downstairs. Months later, Chicago Tribune columnist Eric Zorn would call DeMar--who is five feet, nine inches tall and weighs 140 pounds--a "suburban cowboy." Wilmette Chief of Police George E. Carpenter would say he put himself at risk "unnecessarily, on multiple levels."

Shots in the Dark

DeMar faced more than second-guessing after the break-in. He was charged with violating Wilmette's handgun ban, an offense that carries a $750 fine. His attempt to challenge the fine in court shows how difficult it can be to assert a right to armed self-defense in the United States, despite an explicit constitutional guarantee that would seem to preclude gun laws like Wilmette's. Illinois courts have been so hostile to this right that DeMar's lawyer never cited the Second Amendment in his arguments, relying instead on other, tangentially related constitutional provisions. Ultimately it was the state legislature rather than the courts that prevented DeMar from being punished for daring to protect himself and his family.

When he got downstairs, DeMar saw a man in his dark family room. Since he "didn't see any flesh," he thought the intruder was masked. He was right. From the kitchen, DeMar fired two shots. One struck Billings in the upper left arm.

Now both men wanted the same thing: Billings out of DeMar's house. Billings ran, heading through the family room, dining room, and living room. He passed a door leading outside but didn't go through it. "I don't know," he'd later say. "I guess I should've. I just wanted to get the fuck out."

Billings came to a hallway connecting the kitchen, front door, living room, and stairs. DeMar fired two more shots, one of which dug into Billings' left leg. Billings broke a living room window, climbed through, and ran westward through the dark. DeMar went back to his bedroom. Trembling, he called the police.

At some point the phone rang, and DeMar's 10-year-old son, Jack, picked it up. It was the alarm company. Jack explained the situation.

As the police responded, a neighbor called in a suspected burglary. Billings, once again in DeMar's SUV, had cut through a yard on Laurel Avenue, breaking a fence on his way to Evanston's St. Francis Hospital. It was further than Evanston Hospital, but he wanted to get as far away as possible, and he was more familiar with St. Francis, which is the hospital where he was born.

Arriving at DeMar's house to find him on the phone with their department, the police took both of his guns. They came across several bullet holes, a black and tan baseball cap, a "skull cap/dew [sic] rag," and blood. At the property on Laurel Avenue through which Billings had driven they found broken pieces of plastic from the SUV's passenger-side mirror housing. At St. Francis Hospital were the rest of the vehicle and the offender. Billings had parked the SUV across a sidewalk near the hospital, gotten out, and collapsed; staff had taken him inside. In August 2004 he'd receive a seven-year prison sentence.

Two days after the break-in, the Cook County state's attorney's office released a statement declaring DeMar's actions self-defense. But Illinois requires gun owners to keep a firearm owners' identification card, and DeMar's had expired in 2000. On January 8, 2004, he was charged with that violation, which carries a maximum penalty of a $2,500 fine and a year in jail. Prosecutors dropped the charges about a month later, saying they did not want to "revictimize" DeMar for a "lapse."

But the Village of Wilmette fined DeMar $750 for disobeying its handgun ban. "Our function is not to make ordinances but to enforce them," says Brian King, deputy chief of operations at the Wilmette Police Department. "The individual told us he was knowingly in violation of the ordinance for a long time. If you don't enforce it in that case, it makes it impossible to enforce it for anybody else." Chief Carpenter acknowledges that the department could have made an exception in light of the circumstances. "There is discretion involved," he says, "but we felt it was appropriate in this case."

Carpenter argues that DeMar should have stayed upstairs with his son and his 8-year-old daughter, Madeline, instead of seeking a confrontation. "Our culture seems to define the family protector's role as seeking out the enemy, or the intruder," he says. "What we tell people is: You're the last line of defense. Don't leave your family."

DeMar explains his actions this way: "I suppose some would have grabbed their children and cowered in their bedroom...praying that the police would get there in time to stop the criminal from climbing the stairs and confronting the family in a bedroom, trembling, dreading the sound of the door being kicked in. That's not the fear I wanted my children to experience, and it is not the cowardly act that I want my children to remember me by."

Another issue was a missing bullet, as police reports accounted for only three of the four rounds. Investigators found two holes in window panes, the third in a wall. Bernard Michna, a Wilmette trustee (the town's equivalent of a city councilman), cites the bullet holes and the stray round to bolster his support for the handgun ban and the fine imposed on DeMar. "We need to set the example that we're trying to protect our citizens," he says. "He's endangering innocent civilians."

Local Gun Bans

It's a matter of contention whether there are more defensive gun uses or criminal misuses in the United States, but it's clear that armed self-defense occurs on a regular basis. Florida State University criminologist Gary Kleck has concluded, based on national telephone surveys, that up to 2.5 million defensive incidents occur each year. This figure compares favorably to the roughly 350,000 firearm-related murders, robberies, and aggravated assaults the FBI reports yearly. In the vast majority of defensive uses, the victim simply brandishes the gun and the offender leaves--which is why one rarely hears about such incidents, Kleck argues.

Using different methods, other scholars have come up with much lower numbers. In Gun Violence: The Real Costs (2000), Philip J. Cook of Duke University and Jens Ludwig of Georgetown University report, based on data from the National Crime Victimization Survey (NCVS), that only 100,000 defensive gun uses occur each year. (The NCVS, which is sponsored by the Bureau of Justice Statistics, uses interviewers who visit people's homes and ask them to describe their personal experiences with crime.) In Evaluating Gun Policy: Effects on Crime and Violence (2003), Cook and Ludwig consider in-home incidents of armed self-defense, suggesting a range of 32,000 (based on an NCVS analysis by Cook) to 503,000 (based on a DataStat telephone survey commissioned by the federal government).

The NCVS consistently elicits fewer claims of defensive gun use than do telephone surveys. Critics have questioned the accuracy of telephone interviews, noting that gun owners may perceive threats that aren't real. But the results of victimization surveys are debatable as well: They don't always ask directly about defensive gun use, and people who scare off would-be assailants might not consider themselves crime victims.

It is rare for an American to get into legal trouble after using a gun defensively, but it has happened before. In 1986 prosecutors charged Oak Park, Illinois, gas station owner Donald Bennett with violating the village's handgun ban after he shot at armed robbers. A jury acquitted him later that year despite his obvious guilt. In 2003 Brooklyn computer engineer Ronald Dixon spent three days in jail after shooting a home invader. Dixon's handgun permit had not yet been approved.

Strict gun laws got a boost after the Chicago suburb of Morton Grove successfully defended its handgun ban, which was passed in 1981 and immediately challenged in state and federal court. The lawyers who filed the suits tried a variety of arguments, citing privacy, the Second Amendment, and a similar provision in the Illinois Constitution's Bill of Rights ("Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed").

In the 1982 decision Quilici v. Village of Morton Grove, a panel of the U.S. Court of Appeals for the 7th Circuit rejected these arguments by a 2-to-1 vote. The Illinois Supreme Court followed suit, by a 4-to-3 margin, in the 1984 ruling Kalodimos v. Village of Morton Grove. The U.S. Supreme Court declined to hear an appeal of Quilici.

To gun control advocates, the Morton Grove decisions proved there was nothing unconstitutional about banning specific categories of weapons. Several municipalities followed in Morton Grove's footsteps, including Chicago; its suburbs Evanston, Oak Park, Winnetka, and Wilmette; and Washington, D.C. But the decisions also provoked a backlash in state legislatures. By 1991, according to the pro�gun control Violence Policy Center, 38 states had passed laws pre-empting local handgun bans, in addition to three that had done so before Morton Grove passed its prohibition.

Defense of Self-Defense

The Wilmette Board of Trustees got a taste of the backlash against gun bans after Hale DeMar was fined. "None of the trustees had asked that the ordinance be changed," says Trustee George M. Pearce. Gun rights supporters nevertheless crowded the board's January 13, 2004, meeting to discuss the case. "Probably half of them were from outside of Wilmette," says Pearce.

To this day no trustee has proposed amending the handgun ban. Both Pearce and Bernard Michna, another trustee, say most Wilmette residents support it. Opponents are "a small but vocal minority," Michna says.

State Sen. Edward Petka (R-Plainfield) and state Rep. John Bradley (D-Marion) decided to take action. Within two days of the Wilmette trustees' meeting, both had filed bills creating a defense for people in DeMar's situation. "A village can still file a charge, but the person who is charged can assert an affirmative defense and state that he violated the ordinance in defending himself," Petka explains. "If it's believed by judge or jury, it would constitute a defense to the charge." The legislation applies only on a person's land or in his or her "abode" or "fixed place of business."

Concerning the bill, Michna says "the downstate mentality is that guns are there for your protection and so forth, and no downstate legislator is going to come out and vote against something like that. If you say what really is true about handguns, people are going to twist it and turn it and turn you into some kind of abolitionist."

The bill's opponents raised two issues: local control and the possibility that the law might encourage people to own handguns. "Local control has nothing to do with denying what I consider a basic right under the state and federal constitutions," Petka says. "A village can no more deny self-defense than they can pass an ordinance that you can't publish articles in their territory." Petka does not deny the law might encourage handgun ownership, but he suggests handguns pose less of a danger to neighbors than the more-powerful shotguns and rifles that Wilmette's ordinance permits.

The Illinois General Assembly sided with Petka. In May 2004 the House passed the bill by a vote of 90 to 25, the Senate by a vote of 41 to 16. Both votes surpassed the three-fifths majority necessary for a veto override, and on August 20 Gov. Rod Blagojevich (a Democrat) made one necessary. In November the Senate and the House overrode his veto by votes of 40 to 18 and 85 to 30, respectively.

Condoms, Porn, and Weaponry

In early February 2004 the Chicago Tribune announced that Hale DeMar was challenging Wilmette's handgun ban in Cook County Circuit Court. DeMar invoked the Second Amendment in an interview with the Tribune, but it was the last time anyone mentioned the right to keep and bear arms in connection with the case. DeMar's attorney, Robert Orman, instead argued that the ban violated the right to privacy; was "arbitrary and capricious," in violation of the 14th Amendment's Due Process Clause; and conflicted with another local ordinance that allows residents to discharge firearms in self-defense.

Only the privacy claim received media attention. The Constitution does not mention a right to privacy but does imply one (in the Fourth Amendment's prohibition of "unreasonable searches and seizures," for example), and privacy is a part of America's common law heritage. The Supreme Court has cited privacy in decisions protecting abortion rights, access to birth control information, possession of pornography in the home, and sodomy between consenting adults. One of Orman's briefs cited Paris Adult Theatre I v. Slaton, a 1973 case that held pornography in theaters open to the public is not protected by the right to privacy. The ruling stated, "This privacy right encompasses and protects the personal intimacies of the home, the family, marriage, motherhood, procreation, and child rearing." The handgun ban, Orman claimed, violated this right.

In her reply brief, Mary Beth Cyze, assistant corporation counsel for Wilmette, argued that constitutional privacy protection applies only to "fundamental" rights, and that the courts have never put owning a handgun in that category. "It is difficult to imagine a scenario under which a ban on one category of weapons, i.e., handguns, impinges on a 'personal' or 'intimate' matter even vaguely resembling abortion, contraception or procreation," she wrote.

Cyze pointed out that Orman's reasoning was similar to that of 7th Circuit Judge John Coffey, who wrote a privacy-based dissent in Quilici v. Morton Grove. "Surely nothing could be more fundamental to the 'concept of ordered liberty' than the basic right of an individual, within the confines of the criminal law, to protect his home and family from unlawful and dangerous intrusions," Coffey wrote. That argument, Cyze said, had been considered and rejected by the 7th Circuit.

Orman also argued that the ordinance was "arbitrary and capricious as applied to [DeMar] under the facts and circumstances of this case" and therefore a violation of his right to due process. Courts can strike down decisions or laws as "arbitrary and capricious" if they are unreasonable or do not logically relate to a legitimate function of government. Orman offered six points to back this assertion, most of them relating to DeMar's right to protect himself, his family, and his home. "The sole and only realistic protection for most real and decent people in their homes is the handgun," he contended. As Richard Pearson, director of the Illinois State Rifle Association, put it, a .38-caliber revolver is "not too powerful, and it's not too big."

But Cyze argued that DeMar was free to shoot Billings with a rifle or shotgun, adding that it was legally irrelevant whether a handgun is the safest weapon for in-home use. She offered a similar reply to Orman's claim that Wilmette's gun ban contradicted its ordinance allowing citizens to fire weapons in self-defense.

Orman's briefs did not mention the Second Amendment: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Given the failure of the challenges to Morton Grove's ban, the omission was not surprising.

Pleading the Second

The U.S. Supreme Court has never struck down a gun control measure on Second Amendment grounds. In the last Second Amendment case it heard, United States v. Miller (1939), the Court ruled that a ban on sawed-off shotguns did not violate the Constitution because "it is not within judicial notice that [such weapons are] any part of the ordinary military equipment or that [their] use could contribute to the common defense." This ruling certainly suggested that some categories of weapons are legitimate targets of legislation. Orman called the Second Amendment issue "a matter of settled law." Cyze went so far as to say "nobody would suggest that the Second Amendment applies to an individual."

Stephen Halbrook would. A Virginia-based attorney who has taken part in numerous high-profile gun cases (he helped fight the Morton Grove ban), Halbrook is co-author of Supreme Court Gun Cases, which argues that the high court has repeatedly acknowledged, in cases not directly involving guns, that the Second Amendment protects an individual right. In the 1990 case United States v. Verdugo-Urquidez, for example, Chief Justice William Rehnquist's majority opinion concluded that the phrase "the people"--which, Rehnquist noted, appears in the Second Amendment as well as the First, Fourth, Ninth, and 10th amendments--is "a term of art" that "refers to a class of persons who are part of a national community." Halbrook is also the author of That Every Man Be Armed: The Evolution of a Constitutional Right, which makes the case that the Framers understood the Second Amendment as guaranteeing an individual right to arms--a view that has attracted growing support among legal scholars in the last two decades.

But even Halbrook agrees that citing the Second Amendment in the 7th Circuit, which includes Illinois, would have been a mistake. "Picture the Bill of Rights with 'void where prohibited by law' stamped over the Second Amendment," he says. According to the view that still holds sway in most circuits, he says, "It's a weird, collective right, not a right 'of the people' like the amendment says." Only the U.S. Court of Appeals for the 5th Circuit, in the 1998 case U.S. v. Emerson, has explicitly rejected the collective-right interpretation of the Second Amendment and endorsed the individual-right view.

With most circuits seeing the Second Amendment as no obstacle to gun control, advocates of gun rights have turned to other constitutional provisions. As Cyze, Wilmette's lawyer, noted in one of her briefs, their record is not a strong one. Appeals courts have rejected challenges to gun control based on the Fifth, Eighth, Ninth, 10th, and 14th amendments. No more effective have been challenges based on the 13th Amendment's prohibition of slavery or attempts to define gun laws as bills of attainder, ex post facto laws, or violations of the Commerce Clause.

That's not to say all non�Second Amendment claims are without merit. "One constitutional claim is the Ninth Amendment," which protects unenumerated rights, notes Cato Institute legal scholar Robert A. Levy. "Whether the Second Amendment pertains to a state or an individual is irrelevant if each of us has a Ninth Amendment right to defend ourselves." He concedes, however, that the Ninth Amendment has "never been given a whole lot of weight by the courts."

The Ninth Amendment case cited by Cyze is United States v. Broussard, a 1996 5th Circuit decision in a drug trafficking case. The court's Ninth Amendment finding was based on lack of argument, not a thorough analysis of the claim. The co-defendant Claude Merritt "does not point to any authority in support of his argument," the court said. "Nor does he advance any rationale to support his assertion that the right to possess weapons is among the rights reserved to citizens under the Ninth Amendment. Merritt relies solely on a law review article to support his contention."

Whatever possibilities these constitutional arguments hold, the best chance for a win may ultimately lie in the Second Amendment, says Arizona attorney David T. Hardy, a gun rights advocate. "Anything could be successful," he says, "but if you can't win on the Second Amendment with [a right to weapons] spelled out, you probably wouldn't win without it. I don't see where the Ninth Amendment or privacy would give you a tactical advantage."

The Next Battles

DeMar was not present on October 29, when Cook County Circuit Judge Thaddeus Machnik called Orman and Cyze to the front of his Skokie courtroom and handed each a copy of his 16-page decision dismissing DeMar's challenge to Wilmette's gun ban. Parts of Machnik's opinion seemed taken straight from Cyze's briefs: The right to privacy did not apply to handguns in the home. The ordinance was not arbitrary or capricious. And because DeMar could have used a long gun instead, the handgun ban was consistent with the ordinance allowing citizens to discharge firearms in self-defense. The opinion dismissed DeMar's counterclaim, but it did not rule on the initial charge.

That ruling never came. On December 22 both parties agreed to dismiss the case. With the new state law protecting defensive gun use on the books, the village recognized it couldn't win.

The outcome disappointed Orman. "I don't think our position was successful," he says. "Even though we won and effectively got everything we wanted, we didn't get it the right way." Although "the legislature took the first positive step," Orman wanted the courts to "recognize a constitutional right to protect the home." Wilmette's handgun ban remains in effect.

There are two other high-profile gun ban challenges still pending, both involving Washington, D.C., which has a law even stricter than Wilmette's. In addition to effectively banning handguns, the city requires that all long guns be kept unloaded and locked.

Parker v. District of Columbia, in which Cato's Robert Levy serves as co-counsel, seeks a ruling based solely on the Second Amendment. Seegars v. Ashcroft, backed by Stephen Halbrook and the National Rifle Association, names the U.S. Department of Justice as a defendant, since the DOJ prosecutes handgun possession cases in D.C., and complements (or complicates) the Second Amendment argument with claims based on the Fifth Amendment's guarantees of property and equal protection, the Civil Rights Act of 1866, and a D.C. law requiring that ordinances be "usual and reasonable."

Both cases lost in U.S. district court. U.S. District Judge Emmet G. Sullivan "indicated that he found our arguments credible, but he thought U.S. v. Miller bound him," Levy says of his case. U.S. District Judge Reggie B. Walton dismissed Halbrook's case for lack of standing: None of the plaintiffs had tried to register a handgun, been denied, and exhausted the appeals process. In February the U.S. Court of Appeals for the D.C. Circuit agreed with Walton, but as of this writing the Parker attorneys have yet to argue their appeal; at the city's request, the court delayed consideration of Parker until the resolution of Seegars.

As happened in the DeMar case, legislative action could make these challenges moot. The D.C. Personal Protection Act, which would allow handgun ownership, eliminate registration, and repeal storage laws in the nation's capital, passed the House of Representatives in late September and is awaiting action in the Senate. It is likely to be a close vote.

Levy doesn't support the bill. He says it "could be repealed by the next liberal Congress; it doesn't provide the kinds of permanent protection a court ruling can." In any case, he adds, "I don't think the D.C. Council would be stymied. There are all sorts of bureaucratic and administrative things that can be used to deny people the right to have a handgun." Regardless of how the bill fares, Levy hopes to push a viable case to the forefront as soon as possible. "You don't want a bank robber or a crackhead up there as a poster boy for the Second Amendment," he says.

David Hardy favors waiting, predicting a 10-year battle. He hopes the Bush administration, which has endorsed the individual-right interpretation of the Second Amendment, will appoint gun-friendly justices to the Supreme Court. "Now we've got three votes for sure, and the rest are in the other camp," he says. "I'd like to see four or five in our back pocket, with a really good test case. Once you have a ruling you're only halfway through, because the lower courts will resist. It will be a battle to get the lower courts in line, and I doubt it would be a quick fight."�