Unanimous 7th Circuit Upholds Gun Ban

This is interesting:

A federal appeals court on Tuesday upheld ordinances barring the ownership of handguns in most cases in Chicago and suburban Oak Park, handing a sharp defeat to the National Rifle Association.

The Second Amendment to the Constitution guaranteeing the right to bear arms is not an adequate basis for lawsuits attacking local gun ordinances, the three-judge panel of the 7th U.S. Circuit Court of Appeals ruled.

[...]

A panel of the New York-based 2nd U.S. Circuit Court of Appeals that included Supreme Court nominee Sonia Sotomayor reached a similar conclusion about the reach of the Second Amendment in a case from New York over a state law banning the possession of chuka sticks -- a weapon composed of two sticks joined at the ends by a rope or chain.  

What's interesting about this decision, which holds that the Second Amendment is not incorporated to the states, isn't that it was a unanimous decision, but rather that the unanimous panel was an entirely conservative one made up of Ronald Reagan appointees Frank Easterbrook (who penned the decision) and Richard Posner, and Gerald Ford appointee William Bauer.

Political conservatives might not like this reasoning, and they have certainly tried to argue that the nomination of Sonia Sotomayor to the Supreme Court is in some way an effort to undermine the Second Amendment because she came to roughly the same conclusion in a similar case. But with one of the most judicially conservative panels in the nation reaching the same verdict as Judge Sotomayor, it's going to be awfully difficult to make stick the charges that she is unreasonably opposed to gun owner rights.

Tags: gun control, Richard Posner, Second Amendment, Seventh Circuit, Sonia Sotomayor (all tags)

Comments

27 Comments

What's really funny..

...is that the so-called liberal 9th Circuit recently held that the 2nd Amendment is incorporated against the states. (Nordyke v. King, Apr. 20, 2009 - panel included Reagan, Carter, and Clinton appointees).

by PeteyP 2009-06-02 04:22PM | 0 recs
Re: What's really funny..

This doesn't surprise me at all, actually.  Liberal judges have long supported full incorporation of the Bill of Rights, while conservative judges have generally opposed it.

This just goes to show that usually (Bush v. Gore being the glaring exception), judges' personal judicial ideology trumps their personal political ideology (for example Gonzales v. Raich where most of the conservatives voted to strike down a marijuana law, while the liberals plus Scalia voted to uphold it, since the issue was whether or not it violated the Commerce Clause).

by bannana873 2009-06-02 05:55PM | 0 recs
Re: Unanimous 7th Circuit Upholds Gun Ban

Still it is really really sad that people can't own nunchuks in New York.

by MNPundit 2009-06-02 04:31PM | 0 recs
So why is this town in IL...

...allowed to ban handguns, but we in DC aren't?

Is it something about the way the laws themselves are written?

Or is it related to all the other reasons we in DC are relegated to second-class citizen status (like not getting the Congressional representation to which we are entitled as Americans, not having true home rule, etc.)?

by mistersite 2009-06-02 04:34PM | 0 recs
I second this question

Does this decision contradict the DC decision, or is there something about the circumstances that makes it different?

by mcc 2009-06-02 04:35PM | 0 recs
Re: I second this question

D.C. is not a sovereign state, but a federal territory.

by LordMike 2009-06-02 04:45PM | 0 recs
Re: I second this question

What caught my eye about the DC decision was that-- as I understood it-- the really interesting part wasn't the invalidation of the ban itself, but that it incidentally held the 2nd amendment was a personal, individual right. What I don't understand is how there could be a personal, individual right that the federal government is obliged to observe, without that obligation also applying to the states.

by mcc 2009-06-02 04:58PM | 0 recs
Re: I second this question

What I don't understand is how there could be a personal, individual right that the federal government is obliged to observe, without that obligation also applying to the states.

Simple.  The USSC has never incorporated Amendment II.  

The 9th Circuit has (just this past April) - but Chicago is not on the 9th Circuit.

by Collideascope 2009-06-02 05:27PM | 0 recs
Re: I second this question

Basically, the Bill of Rights only applies to the Federal Government, not the states.

However, the 14th Amendment supplies a mechanism whereby "fundamental rights", such as many in the Bill of Rights, can be applied to restrict state power.

The Supreme Court long ago rejected the idea that all of the Bill of Rights is "incorporated" to the states through the 14th Amendment. Instead the Court has declared rights, one by one, to be "fundamental" and therefore incorporated to the states under the 14th. Some justices argued for jsut doing it all at once, but they lost.

As of the current time, most of the Bill of Rights has been applied to the states by the Court. However, a few have not, including the 2nd Amendment. There are a few others (states don't have to give you the right to a grand jury int he 5th Amendment, for instance.

So, until the Supreme Court rules that the 2nd is incorporated to the states through the 14th, only the Federal Government is restricted form infringing on the right to bear arms.

by jeopardy 2009-06-02 05:28PM | 0 recs
Re: So why is this town in IL...

The 7th Circuit decision really had nothing to do with their own substantive analysis of whether the 2nd Amendment should apply to the states. Rather, they simply noted that the Supreme Court has rebuffed previous attempts to apply the Second Amendment to the states.

Even though these precedential cases were from the late 1800s and even if the rationale from the recent Heller case or others undermined the previous rationale, the 7th Circuit reasoned that it was up to the Supreme Court -- and not the Court of Appeals -- to reject them. Basically, Judge Easterbrook was saying that only the Supreme Court can overrule direct Supreme Court precedent.

Some analysis and discussion at my blog if anyone is interested.  

by mhojo 2009-06-02 04:55PM | 0 recs
Re: Unanimous 7th Circuit Upholds Gun Ban

The second Amendment hasn't been incorporated, so technically, it just applies to Congress.

Any SCOTUS ruling regarding the scope of the 2nd amendment (it being independent of the need to keep a well armed militia) wouldn't necessarily apply to the states at all, only to Congress.

by Searching For Pericles 2009-06-02 05:33PM | 0 recs
Re: Unanimous 7th Circuit Upholds Gun Ban

Panel included Easterbrook and Posner, two noted conservative judges.  Easterbrook wrote the decision.

I'd imagine the issue of incorporation of the 2nd Amendment against the states will find itself before the USSC before too long now that there's a split among the circuits.

by bosdcla14 2009-06-02 05:43PM | 0 recs
What Progressives Should Argue

Progressives should use the First Amendment Freedom of Speech principles and apply it to the Second Amendment by arguing that the individual right to bear arms is not an absolute right. From this perspective, gun control legislation would be on solid constitutional grounds.

For example, under the First Amendment you have no right to yell "fire!" in a crowded theater.  Likewise, under the Second Amendment you would have no right to arm yourself with an atomic bomb. Progressives should argue that some type of balancing test should apply to see if a gun control law stands up to scrutiny.

The argument that the right to bear arms is a collective right and not an individual right does not have the support of a majority of constitutional law scholars (At least that's what I've heard). First, the Second Amendment is in the section of Bill of Rights where individual rights are listed, and Second, it was commonly understood in the eighteenth century that without the individual right to bear arms, state militias could not recruit members.

by Zzyzzy 2009-06-02 06:46PM | 0 recs
Re: What Progressives Should Argue

using that line of reasoning since the first applies to public institutions like malls and universities then the 2nd should also apply and i should be able to carry my pistol.

then again, i never understood why the 2nd is the only amendment that gets selective treatment like that.

all the other amendments apply to all public areas except the 2nd

by lotus delray 2009-06-02 06:59PM | 0 recs
Re: What Progressives Should Argue

The analogy shouldn't be taken too literarally. The key is that Freedom of Speech is not an absolute right.

However, what you say is quite interesting. Under the First Amendment, private institutions can curtail speech. Thus, the analogy would be private institutions being able to curtail the right to bear arms.

Now, I'm not sure whether a University cannot curtail speech. I'm sure that a Private University can kick a student out of their school for their beliefs or what they say. Malls can restrict speech, too. However, they cannot curtail protected speech in a public forum.

by Zzyzzy 2009-06-02 07:11PM | 0 recs
the first is a two parter

certainly from a religious aspect the first amendment affects all public schools and to a lesser extent malls. i'm just annoyed at the bizarre interpretation that the 2nd amendment can be ignored whenever the government feels like it.

if it's public property i should be allowed to carry my pistol.
it makes no sense why a public university can ban pistols, i understand courthouses, and government offices, but a university is not in the same situations as either of those, and yet they can ban handguns.
 if every other amendment applies to a public university, why the fuck doesn't the 2nd.

by lotus delray 2009-06-02 07:18PM | 0 recs
Re: the first is a two parter

You still can't go to a crowded auditorium and yell fire, even if in a public university.

In regarding to religion, you have two clauses in the First Amendment: The Free Exercise Clause, and the Separation of Church and State. Thus, I would argue that public schools cannot advocate for a specific religion, but they can't stop its students from believing in a specific religion. Sometimes the two clauses clash.

by Zzyzzy 2009-06-02 07:32PM | 0 recs
Re: What Progressives Should Argue

Of course you can't arm yourself with an atomic bomb.  Even Justice Scalia in the Heller decision said it was a no-brainer that the government can enact basic restrictions like preventing violent felons from carrying guns.

The harder part of the argument is convincing people that a handgun is akin to an atomic bomb.

by Steve M 2009-06-02 07:46PM | 0 recs
that's absurd

what a bullshit ruling, how the fuck is a constitutional amendment not a adequate basis? what next, can chicago ban free speech and you can't sue because the first isn't adequate.

how is the supreme law of the land not adequate?

and how does the Chicago ban stand in light of the D.C. ban? that makes no sense whatsoever, it should be denied by virtue of the supreme courts precedent.

sounds like the 7th is blowing smoke out of it's ass

by lotus delray 2009-06-02 06:57PM | 0 recs
I Don't Like the Court's Reasoning

When the Fourteenth Amendment was first passed, almost every one thought that the first nine amendments to the constitution were the fundamental rights that applied to the states. However, conservative judges narrowed the definition to what a fundamental right is.

Now I suppose one could argue that the right to bear arms is not a fundamental right, even if its an individual right. I think there is a slippery slope here that could render the Fourteenth Amendment meaningless, just like the Ninth Amendment has been rendered meaningless by conservative judges.

I believe that progressives should argue that the right to bear arms is an individual right, but that its not an absolute right. Thus, gun control laws are on solid constitutional grounds.

by Zzyzzy 2009-06-02 06:57PM | 0 recs
Re: I Don't Like the Court's Reasoning

i don't see how anyone could possibly argue that the right to self-defense is not an inherent right.
 from the very foundation of liberalism the right to bear arms was seen as an absolute fundamental right, and this stands to reasons.

especially in light of the fact that the courts have consistently ruled that the police are not obligated to protect your life

by lotus delray 2009-06-02 07:03PM | 0 recs
If That's What You Believe

Then you shouldn't believe in gun control laws at all. I'm suggesting what gun control advocates should argue, not what anti-gun control advocates should argue. But remember, the United States Supreme Court has ruled that Freedom of Speech is not an absolute inherent right.

by Zzyzzy 2009-06-02 07:16PM | 0 recs
Re: If That's What You Believe

i'm not opposed to all gun control, but i am opposed to stupid gun control and gun bans.

i should be allowed to carry a semi-auto pistol for self-defense.

now i'm not supporting full legalization of full-auto AK's and machine pistols, but if England's gun ban has shown anything it's that gun bans don't work, and in fact all relevant studies have consistently shown that gun availability has almost no effect on gun crime and violent crime.

by lotus delray 2009-06-02 07:22PM | 0 recs
Re: Unanimous 7th Circuit Upholds Gun Ban

Whoever wrote this article should really do a brief explanation of the history of the Bill of Rights and its application to the states (i.e. incorporation).  From the comments, it seems like a lot of people don't realize that the Bill of Rights don't now, and never have, applied to the states, but at least since the ruling in Baron v. Baltimore, have only ever applied to the Federal Government.

Even with incorporation, the Bill of Rights still don't technically apply to the states, it's just that many (but not all) of the rights included in the Bill of Rights are found to be part of the Fourteenth Amendment, which does apply to the states.  But think about it.  In states, how many states have a rule restricting your right to have a jury hear your lawsuit if it is less than a certain value (usually a couple thousand doallars)?  Most do.  Yet, the Seventh Amendment guarantees your right to a jury Trial if the amount in controversy is greater than 20 dollars.  If the Bill of Rights applied to the states, those state rules would be unconstitutional, but since it doesn't, that's how the states have these rules.

by bannana873 2009-06-03 04:25AM | 0 recs
Re: Unanimous 7th Circuit Upholds Gun Ban

I think you are misinterpreting my comments. What I'm saying is that the Fourteenth Amendment states that fundamental rights pertain to the states. There was a time when people took a fundamental right as one of the first nine amendments to the constitution. But the Supreme Court said no. For example, the Court did say that the right to a jury trial was a fundamental right, but having 12 jurors was not a fundamental right. My reasoning is that if the Supreme Court rules that the Right to Bear arms is an individual right, then it should be a fundamental right. If it's not a fundamental right, then what is the standard applied? If the Seventh Circuit says that the Second Amendment is not incorporated into the states, then it's also saying that the Second Amendment is not a fundamental right. I think the Seventh Circuit decision will be reversed by the Supreme Court. As I've been saying, the better argument is to say that its a fundamental right under the Fourteenth Amendment, but the right is not absolute.

by Zzyzzy 2009-06-03 09:25AM | 0 recs
Re: Unanimous 7th Circuit Upholds Gun Ban

Oh, your comment wasn't one of the ones I was referring to.  If you read some of the other comments on here, some people really do not seem to understand incorporation and that the Bill of Rights doesn't apply to the states.

I actually personally support full incorporation (with the possible exception of the $20 jury trial right, since that'll just be nuts today), including the right to bear arms, even though I rather strongly disagree with the Heller ruling...

But you do make a good point.  Since about the 1920's, every time the Supreme Court has considered incorporating a specific clause of a specific amendment, it has pretty much always done so, but just refused to go the full incorporation route.  This means we don't have full incorporation, but the lower courts also have no Supreme Court standard from which to determine whether or not an amendment should be incorporated if it hasn't been already.  The lack of a standard is definitely a problem, and certainly does provide yet another reason, in my opinion, to go the full incorporation route.

by bannana873 2009-06-03 10:25AM | 0 recs
Easterbrook and Posner

sigh They ran 3 years of my life!

by sepulvedaj3 2009-06-03 04:33AM | 0 recs

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