About that 7th Circuit Court decision ...
A Chicago ordinance banning handguns and automatic weapons within city limits was upheld by a U.S. Court of Appeals panel, which rejected a challenge by the National Rifle Association.
The unanimous three-judge panel ruled today that a U.S. Supreme Court decision last year, which recognized an individual right to bear arms under the U.S. Constitution’s Second Amendment, didn’t apply to states and municipalities.
“The Supreme Court has rebuffed requests to apply the second amendment to the states,” U.S. Circuit Judge Frank Easterbrook wrote, upholding lower court decisions last year to throw out suits against Chicago and its suburb of Oak Park, Illinois.
The Fairfax, Virginia-based NRA sued the municipalities in June 2008, one day after the U.S. Supreme Court’s decision in District of Columbia v. Heller struck down a hand-gun ban in the U.S. capital district encompassing Washington.
“We clearly disagree with the court’s conclusion,” NRA attorney William N. Howard, a partner in Chicago’s Freeborn & Peters LLP, said in a telephone interview. “The next step will be an appeal to the Supreme Court.”
“We recognize that this may not be the end of this litigation,” Jenny Hoyle, a spokeswoman for the city of Chicago’s law department said, acknowledging the likelihood the NRA would seek further review. “We’re certainly prepared for that if this happens. We’re prepared to aggressively defend our ordinance.”
Let's start at the beginning. In the case of DC v. Heller the Supreme Court gave a very narrow ruling. they recognized that the Second Amendment was meant to be an individual right, as the framers had believed it was when it was enacted as part of the Bill of Rights in 1791. To that there is no argument. No court out there is going to overrule the Supreme Court on that issue.
What the NRA wanted the court to rule on is the incorporation aspect. That is, does the Second Amendment get the same treatment under the Fourteenth Amendment? In other words, if the Fourteenth Amendment states that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ..." does that include the Second Amendment?
This is a touchy issue that the 7th Circuit Court explained:
Chicago U.S. District Judge Milton Shadur on Dec. 4 rejected the NRA’s request that he apply the Heller ruling to the Chicago and Oak Park laws, stating he was bound to follow a 1982 appeals court ruling upholding a ban by the Illinois village of Morton Grove.
That decision came from the U.S. Court of Appeals in Chicago, the same body that issued today’s opinion. The 15 judges of the Seventh Circuit hear appeals from the federal courts of Illinois, Indiana and Wisconsin.
Easterbrook, joined by Circuit Court Judges Richard Posner and William Bauer, said they, too, were bound to follow the precedent of a higher court, the U.S. Supreme Court, in its ruling on the Second Amendment not applying to states.
What precedent from the USSC, you ask? Presser v. Illinois is the case, and in that case the Supreme Court ruled that Second Amendment to the United States Constitution limited only the power of Congress and the national government to control firearms, not that of the state. In other words Presser was decided on the idea of federalism -- that the States still have their Tenth Amendment rights to enact laws governing their citizens, and the federal government can't encroach on that power.
Where does this go from here? It can only go to the Supreme Court for clarification. Will stare decisis be upheld? That's a question for the justices on the Supreme Court to decide. Do we believe it should be? It doesn't really matter what we believe. This is all up to the Supreme Court to decide whether or not the Second Amendment is under the purview of the Fourteenth Amendment's restriction on laws passed by States. There are many questions that will be asked of the high court should they accept the appeal, and among them is the incorporation question.
This will be as interesting a case as Heller was, and we will be watching how this case progresses.