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* 12:34 pm - The US 7th Circuit appellate court has rejected a lawsuit brought by the National Rifle Association against Chicago and Oak Park over their handgun bans. You can read the decision and listen to oral arguments by clicking here. And here’s the basic gist of the decision…

Before EASTERBROOK, Chief Judge, and BAUER and POSNER, Circuit Judges.

EASTERBROOK, Chief Judge. Two municipalities in Illinois ban the possession of most handguns. After the Supreme Court held in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), that the second amendment entitles people to keep handguns at home for self-protection, several suits were filed against Chicago and Oak Park. All were dismissed on the ground that Heller dealt with a law enacted under the authority of the national government, while Chicago and Oak Park are subordinate bodies of a state.

The Supreme Court has rebuffed requests to apply the second amendment to the states. See United States v. Cruikshank, 92 U.S. 542 (1876); Presser v. Illinois, 116 U.S. 252 (1886); Miller v. Texas, 153 U.S. 535 (1894). The district judge thought that only the Supreme Court may change course […]

The Court did not say that Cruikshank, Presser, and Miller rejected a particular argument for applying the second amendment to the states. It said that they hold “that the Second Amendment applies only to the Federal Government.” The Court added that “Cruikshank’s continuing validity on incorporation” is “a question not presented by this case”. Ibid. That does not license the inferior courts to go their own ways; it just notes that Cruikshank is open to reexamination by the Justices themselves when the time comes.

If a court of appeals may strike off on its own, this not only undermines the uniformity of national law but also may compel the Justices to grant certiorari before they think the question ripe for decision. […]

Chicago and Oak Park are poorly placed to make these arguments. After all, Illinois has not abolished self-defense and has not expressed a preference for long guns over handguns. But the municipalities can, and do, stress another of the themes in the debate over incorporation of the Bill of Rights: That the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule. […]

Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon. How arguments of this kind will affect proposals to “incorporate” the second amendment are for the Justices rather than a court of appeals.

The Justices deliberately kicked the case upstairs to the US Supreme Court. An NRA lobbyist just told me the group will definitely appeal.

As always with hot-button issues like this, please do your utmost to avoid canned talking points in comments. And no hostile “drive-by” bumper sticker slogan comments, either. Use your own mind and your own words, please. Thanks.

posted by Rich Miller
Tuesday, Jun 2, 09 @ 12:35 pm

Comments

It is an interesting way to decide (or not decide) this case. Would it follow then that similar rules should apply to first amendment rights? That has not been the way, for example, school prayer cases have been decided. Why would the 2nd Amendment only apply to the federal governement but not the 1st?

Comment by Downstate weed chewing hick Tuesday, Jun 2, 09 @ 12:43 pm
I think it is wrong to say that the judges (only Supreme Court members are justices “deliberately kicked the case” to the Supreme Court. The cases that they cited were directly on point and they all say that the 2d amendment does not apply to the states. It would have been violative of the law for the Seventh Circuit to rule any other way.

Comment by TominChicago Tuesday, Jun 2, 09 @ 12:43 pm
This is actually a tragedy for liberals — the complete bill of rights, including the 2nd amendment, should be deemed to be “incorporated” onto the states by 14th amendment (that’s why a state can’t pass censorship laws even though the Constitution says “Congress shall pass no law…”). Seek out Lawrence Tribe and other liberal Constitutional lawyers for better explanation of this and why progressives should support the NRA on this one. What did we win anyway — if there’s any empiracl evidence showing gun control works in piecemiel fashion like this, I haven’t seen it.

Comment by lake county democrat Tuesday, Jun 2, 09 @ 12:52 pm
whatever. the two most polarized sides in this debate spend way too much time on arcane matters. enforce the laws on the books, keep guns away from bad guys, make sure sales are monitored. I think the deicison is correct legally, but lawsuits are not the ballgame for gun violence.

Comment by Amy Tuesday, Jun 2, 09 @ 12:53 pm
I find it utterly ridiculous that courts can ignore the literal words of the Constitution in justifying the abrogation of rights.

And for the record, I’m referencing the 14th amendment. Apparently, due process is only an important constitutional right when the state feels like granting it.

Comment by Sonic Infidel Tuesday, Jun 2, 09 @ 12:54 pm
Ala carte constitutionalism. The Alderman Roti style Chicago gun ban lives!
http://nalert.blogspot.com/2008/03/ch
icago-democrats-and
-chicago-mob.html

Comment by Steve Tuesday, Jun 2, 09 @ 12:57 pm
Anytime I see a gun control story it reminds me of hwo important someones upbringing is regarding thier view on guns. For people like myself, who grew up handling firearms, I was taught how to properly use and handle a firearm. People in urban environments dont understand firearms, or at least they dont see them as a home protection, or recreational tool.

Since they dont understand the postive values that firearms have, it leads to handgun bans that dont work, and a state divided on this issue. I just wish that the rest of the state could govern itself on this issue and let Chicago “ban” handguns if they want.

There is no doubt this is a state with two completely different views on 2nd amendment rights, lets accept that and write laws which reflect that reality.

Comment by Speaking at Will Tuesday, Jun 2, 09 @ 12:58 pm
Downstate weed chewing hick

Check out http://en.wikipedia.org/wiki/Incorporation_(Bill_of_Rights)

See the section on the Second Amendment.

Comment by maddem Tuesday, Jun 2, 09 @ 1:00 pm
Another debate on the 2nd amendment. I can agree on federalism however there is a 2nd amendment. I don’t think federalism has anything to do with the 2nd amendment. The argument is over what this means and does this mean any governmental entity should have the ability to ban gun ownership amongst the citizens.

Comment by Levois Tuesday, Jun 2, 09 @ 1:08 pm
The academics seem to be viewing it as largely a cowardly way of punting the issue to the Supreme Court (and a disingenuous way of doing it):

http://volokh.com/posts/1243963229.shtml

The New York case cited in the opinion was decided by Sotomayor on — according to the blog — even more ridiculous grounds.

Comment by Anon Tuesday, Jun 2, 09 @ 1:09 pm
I’m with Amy. And I agree with Speaking at Will — totally different perspectives on gun ownership depending on where you live in the state.

Comment by SouthernGirl Tuesday, Jun 2, 09 @ 1:12 pm
the first 10 ammendments are made applicable to the States by the 14 th ammenemnt which provides “…No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws….”

The legal question is which of the first 10 ammendments are “incorporated” by the 14th to apply against the state. The court has held that the due process provisions of the 14th amenemdent incorportae the first ammenedments protections, for example. The Supreme court decided that the 2nd amendment was only intended to prevent congress from passing a national law forbidding arms; but it was not intended to interfer with a local grovernemnts police powers. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=92&invol=542

Comment by Ghost Tuesday, Jun 2, 09 @ 1:15 pm
Ghost –

Cruishank was decided in 1875, before the modern incorporation doctrine was established. in footnote 23 the Heller court even questioned it continueing validity. Not that cruishank also held the freedmen had no first amendment rights either, that it did not apply to the states.

Miller, Cruishank and Presser are all outmoded and out of date. The Court even said in heller that none of their precidents precluded the finding in Heller.

whats more, if the court can find incorporation of the First, which states “congress shall make no laws…” then this is a chip shot.

Especially when you go look at page 64 or 65 where they state “We know of no other enumerated constitutional right….”

I’m just amazed that it was 7 days from arguememnt to decision. We will be infront of SCOTUS for cert before long and with a split in the courts, 2 & 7 vs. 9th almost guarnteed cert.

that being said, if argued early, we should have a decision say March, right in the middle of the session. If argued late, right after session.

Sotomayor may be on the court, but should have to recuse herself becuase of the 2nd dist case.

I think I’m gonna need a bunch of shell bills for next session.

Comment by Todd Tuesday, Jun 2, 09 @ 1:30 pm
Wait, this issue is over handguns. People in these two cities can still own long guns,(rifles and shotguns) right? People aren’t prevented from owning guns, just handguns. Like some places ban machine guns or bazookas.

Comment by Deep South Tuesday, Jun 2, 09 @ 1:53 pm
Thank you Maddem.

Comment by Downstate weed chewing hick Tuesday, Jun 2, 09 @ 1:55 pm
“the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule”

Wow. If this is the case, what’s the point of the Bill of Rights? This brings us back to the whole “Popular Sovereignty” debate. Lincoln and Douglas would have a field day with this.

Comment by Old Shepherd Tuesday, Jun 2, 09 @ 1:58 pm
Todd I do not disagree, but you are forgetting the dotorine of Stare Decisis as well.

the short version of what will someday be a 40 page legal opinion is that it would wreak havoc with a States police powers to enforce the ammendment as reuqested; and given that congress has not acted in over a 100 years to change the current legal interpretation or action is a strong reason not to diturb the curent application. For example, Title VII as written is mot likely barred by soveriegn immunity. The court found this in similiar provisions in the ADA, FMLA etc. However, because of prior precedent on Title VII where congress did not act to overturn the courts interpretation that th States were not immune, the same argument granting immunity is held not to apply to Title VII which has the same section 5 problem.

Comment by Ghost Tuesday, Jun 2, 09 @ 2:04 pm
Deep South –

that was the quilici decision from ‘82 that Heller gutted.

“It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed.” Heller (pg 57)

that would be akin to saying you can ban books, since you have TV, radio and the internet. Not gonna happen.

Comment by Todd Tuesday, Jun 2, 09 @ 2:04 pm
How much money do we think Todd is going to raise off this decision? I have to think that, since he appears confident of his position in SCOTUS, he secretly views this as a huge win. This will be in every letter he sends out for the next ten years.

Comment by Skeeter Tuesday, Jun 2, 09 @ 2:07 pm
SCOTUS had been ducking the gun issue for decades. When SCOTUS overturned the DC gun ban, it was opening the door to lots of new gun cases.

Ironically, it sorta seemed like we’d found a happy balance where the gun control people didn’t have much shot at pushing the issue from their direction and the NRA nutcases didn’t have much to fight for either.

Rather than help the country find a solution Republican SCOTUS made the issue more controversial.

But both sides know how to raise money on this issue. And it provides ways for “conservative Democrats” and “moderate Republicans” to cut a contrast with their national parties in swing districts.

So, the winners are the interest groups and politicians like Glenn Poshard and Mark Kirk.

This ruling is a pretty good example of Posner’s legal philosophy in action.

Posner believes in going with his gut and then looking to see if their is legal reasoning that prohibits him from going with his gut.

In this case Posner’s gut told him that SCOTUS made the problem, they can fix it. And he picked the precedents to kick it upstairs.

Comment by Carl Nyberg Tuesday, Jun 2, 09 @ 2:08 pm
Carl,
Posner does not “go with his gut.” He is one of the most highly respected conservative judges around. He’s the real deal. Scalia, in Scalia’s dreams, has half the intelligence and the analytical abilities of Judge Posner. We may disagree with his conclusions, but the idea that they come “from the gut” as opposed to “from far more study and analysis than anybody can imagine” is ridiculous.

Comment by Skeeter Tuesday, Jun 2, 09 @ 2:13 pm
ghost: i’m not forgetting Stare Decisis when the 7th albut declares Miller, Presser and Cruishank defunct, it’s pretty telling.

Scaliaused Heller to set this up:

“But since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field,
any more than Reynolds v. United States, 98 U. S. 145 (1879), our first in-depth Free Exercise clause case, left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those
exceptions come before us.”

as far as precident goes:

“We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”

Skeeter — I don’t write fundraising letters. I view the fact that we got a quick decision that puts us in front of SCOTUS for the fall a huge win. chance for Scalia and Roberts to write another opinion butressing Heller, and giving us say strict scrutiny over gun bans.

If they follow Heller, we could have Right to carry in 12 months.

Comment by Todd Tuesday, Jun 2, 09 @ 2:25 pm
I would expect the Supreme Court to decide that the 2nd amendment *does* apply to the states once the issue reaches them. As for the 7th Circuit decision, it is the regular practice of federal appeals courts to avoid making holdings which directly conflict with Supreme Court precedent (although, as the 9th Circuit has demonstrated, it can happen).

To me, the really interesting cases will come when the limits of which “arms” are protected begins to be tested in earnest. It may be unfair, as Todd argues, for the government to distinguish between long guns and handguns, but what about military-style weapons? There is a wealth of case law establishing the government’s right to “reasonable regulation” of firearms, including banning some types of weapons outright; however, if you believe in a “plain language” approach to constitutional interpretation, the Constitution itself only mentions “arms,” which could be interpreted to mean anything and everything, including nuclear warheads. Perhaps I am underestimating their zealousness, but I don’t believe that even the NRA would say with a straight face that the 2nd amendment guarantees each of us the right to our own nuclear arsenal.

Anyway, the line between “reasonable regulation” and the violation of people’s 2nd amendment rights is, in my opinion, the next great legal battlefield in the gun debate.

Comment by charles in charge Tuesday, Jun 2, 09 @ 2:35 pm
I heard Posner interviewed and he may be a smart guy, but his way of deciding cases seemed like ideology masquerading as common sense. And maybe that’s what all judges do. I haven’t been impressed with the judges I’ve seen in action.

Since SCOTUS took a system that was working and tinkered with it, Posner seems to be saying, SCOTUS can clean it up. Makes sense to me.

Comment by Carl Nyberg Tuesday, Jun 2, 09 @ 2:37 pm
The 7th Circuit took a duck on this issue because the SCOTUS opinion written by Scalia was ridiculously vague: “Handguns are the guns of choice”, “felons can be prohibited from owning any guns”, etc, and I agree in a strong 2d amendment interpretation and application!

SCOTUS sets forth general legal principles in its opinions. District and Circuit Judges try to interpret and apply those general principles. The problem is that results in cases being decided differently throughout the U.S. (see honest service convictions for one) and when SCOTUS believes there are sufficient conflicts between the Circuits (the federal appellate courts) in the application of their opinion, SCOTUS will revisit a case for further clarification, exception, etc.

This regularly takes years while the Circuits are left to make most decisions and interpretations. Well, guess what, the 7th Circuit decided that they were not having this dumped into their laps. Decide it as a State Sovereignty issue and let the parties take it to SCOTUS and let Scalia clarify his rambling opinion into the real world situations that the rest of the Federal Court system has to endure everyday. Scalia should have spent more time explaining the application of the decision and not on the history of english law.

Comment by J Hancock Tuesday, Jun 2, 09 @ 2:44 pm
Speaking about Heller, I find it ironic that many of the same people who decry “judicial activism” believe that that case is correctly decided. Setting aside its atextual conclusions drafted by an alleged originalist, it is truly legislation from the bench. Scalia said that there is a right to have guns in your home, but that government can regulate possession of that gun is certain places. Where is the support in the amendment for the idea that government cannot ban handguns in the home, but it can regulate the possession of that same handgun within 1000 yards of a school?

Comment by TominChicago Tuesday, Jun 2, 09 @ 3:23 pm
@TominChicago:

“Originalism” has long been a fig leaf for the brand of judicial activism favored by conservatives. I hope some of the folks who listen to talk radio/cable news but don’t usually read Supreme Court opinions will read Heller and figure that out for themselves. Not holding my breath, but hoping . . .

Comment by charles in charge Tuesday, Jun 2, 09 @ 3:41 pm
another reason for term limits for all judges

Comment by Bill-O-Rights Tuesday, Jun 2, 09 @ 4:47 pm
Having read the decision, I agree with the final sentence - “How arguments of this kind will affect proposals to “incorporate” the second amendment are for the Justices rather than a court of appeals.”

Question on the 2nd Amendment - am I the only one who thinks advocates come across as believing this is the only one that cannot be in anyway restrained? We are allowed the free exercise of religion, but cannot sacrifice virgins in volcanoes. Etc., etc.

Comment by Smitty Irving Tuesday, Jun 2, 09 @ 11:34 pm
Smitty,
The 2nd is the only one with the phrase “…shall not be infringed…” in it. Maybe that is what leads advocates down the path you mention.

Comment by Kevin Highland Wednesday, Jun 3, 09 @ 12:34 pm