7th Circuit rules 2nd amendment NOT incorporated, upholds Chicago handgun ban

[Little-Acorn]

Several weeks ago, the 9th Circus Court of Appeals in San Francisco ruled that the 2nd amendment's blanket ban on "gun control" laws applied to state and local governments, as well as to the Federal governments. Now the 7th Circuit has ruled the opposite: that its ban does not apply to state and local governments.

I pointed out back then, that the 9th Circus ruling was unnecessary: the clear language of the 2nd amendment makes no restriction to only the Federal govenment, unlike the language of the 1st amendment, which restricts its regulation to only the Fed ("Congress shall make no law..."). Courts have violated that clear distinction, of course, for generations, pretending the amendment didn't say what it said, or that the distinction was somehow "unclear".

But today's 7th Circuit ruling is a clear violation of the 2nd's ban on gun restrictions.

SWince two different Circuit Courts have now ruled in opposite ways on the same issue, this often (but not always) causes the Supreme Court to take the case if it's appealed there.

Hopefully the Supremes will grant cert and hear the case once it's presented.

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http://www.bloomberg.com/apps/news?pid=20601087&sid=awIn1M4tWxi8&refer=worldwide

Chicago Law Banning Handguns in City Upheld by Court

By Andrew M. Harris

June 2 (Bloomberg) -- 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.”

Applicable Law

A San Francisco-based federal appeals court, with jurisdiction over cases from California, Oregon, Washington and six other Western U.S. states, in April ruled the Second Amendment can be read as applicable to states and counties.

“This thing is headed for the Supreme Court,” University of Chicago Constitutional Law Professor Richard Epstein said in a phone interview.

“This is a question where you cannot run a split administration and there’s no way the circuits can resolve this amongst themselves,” he said.

The 7th Circuit case is National Rifle Association of America v. City of Chicago, 08-4241, U.S. Court of Appeals for the Seventh Circuit (Chicago). The 9th Circuit case is Nordyke v. King, 07-15763, in the U.S. Court of Appeals for the Ninth Circuit (San Francisco).


(Full text of the article can be read at the above URL)

[avatar4321]

Well this is ridiculous. This is an positive right. How the heck can the federal government give individuals the right to bear arms yet the states take away that right? it makes absolutely no sense.

[Little-Acorn]

Well this is ridiculous. This is an positive right. How the heck can the federal government give individuals the right to bear arms yet the states take away that right? it makes absolutely no sense.

Well, the Fed govt (thru the 2nd amendment) just says that the right exists and govt can't take it away or restrict it. It's doesn't "give us" the right per se.

As for states, some of the amendments in the BOR are specifically designed to apply to the Federal government only - says so right in the text of the amendment. The 1st is an example - it says "Congress shall make no law regarding an establishment of religion, nor preventing the free exercise thereof..." etc. Congress means Federal government only. It was probably written that eway, becuase many states had official state religions at the time the BOR was written, and the Framers didn't want to interfere with them. So the 1st was written to apply to the Fed only.

Others, though, such as the 2nd amendment, don't have any such restriction. The 2nd says that the right shall not be infringed. Period. That means, by ANY government.

When the 14th was passed, saying that citizens of states had the same rights as citizens of the U.S., some judges took the view that this meant the 1st amendment now applied to the states too. And then some of them said that it meant the entire BOR now restricted state governments - ignoring the fact that some of them (2nd amendment etc.) already did.

And the anti-rights people grabbed onto this, and used it to say that maybe the 2nd and other such amendments DIDN'T apply to the states - opening a gap where there used to be none.

Pretty twisted and convoluted, I know. But that's the kind of mental gymnastics the leftists have to go through to pretend their agenda isn't forbidden by the Constitution.

[Rick OShea]

The rationale behind the two Circuit decisions is based on very different legal principles.

The 9th's acceptance of the incorporation of the 2nd is forced by the decisions before it in California (Hickman) which relied on federal decisions (not SCOTUS) that created the "state's right" or "collective right" interpretation (which was invalidated by Heller). California has no RKBA provision in its constitution (thus no legal evolution for California, testing its gun laws) so the state courts and the inferior federal courts lazily built their gun control validations on a mirage.



". . . we must first decide whether Heller abrogated Hickman. It did. Hickman rested on our conclusion that the Second Amendment protects only a collective right; Heller squarely overruled such conclusion. . . . Thus the basis for Hickman’s holding has evaporated, and the opinion is clearly irreconcilable with Heller. In such circumstances, we consider our prior decision abrogated by higher authority."

Nordyke v King (http://www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0715763.pdf), pg 4475-4476, (April 20, 2009) (194KB .pdf)

The 7th Circuit's decision is legally correct as Illinois has a fairly well inspected RKBA provision that does in fact condition the right, "subject to the police power." (Being that the provision's enactment was 1970, I'll allow you to draw whatever conclusions you want from the social issues of the late '60's in Illinois)

Illinois has always argued that the 2nd is unenforceable on the states and they have won even at the Supreme Court (Presser v Illinois). Their legal arguments are solid and conform to present Supreme Court rulings including Heller.

7th Circuit's decision (http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=rss_sho&shofile=08-4241_002.pdf) in NRA v Chicago issued 6-2-09 (99KB pdf)
mp3 of NRA v Chicago (http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=08-4241_001.mp3) oral arguments held 5-26-09 (5.86MB mp3)

[Little-Acorn]

The rationale behind the two Circuit decisions is based on very different legal principles.

The 9th's acceptance of the incorporation of the 2nd is forced by the decisions before it in California (Hickman) which relied on federal decisions (not SCOTUS) that created the "state's right" or "collective right" interpretation (which was invalidated by Heller). California has no RKBA provision in its constitution (thus no legal evolution for California, testing its gun laws) so the state courts and the inferior federal courts lazily built their gun control validations on a mirage.



". . . we must first decide whether Heller abrogated Hickman. It did. Hickman rested on our conclusion that the Second Amendment protects only a collective right; Heller squarely overruled such conclusion. . . . Thus the basis for Hickman’s holding has evaporated, and the opinion is clearly irreconcilable with Heller. In such circumstances, we consider our prior decision abrogated by higher authority."

Nordyke v King (http://www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0715763.pdf), pg 4475-4476, (April 20, 2009) (194KB .pdf)

The 7th Circuit's decision is legally correct as Illinois has a fairly well inspected RKBA provision that does in fact condition the right, "subject to the police power." (Being that the provision's enactment was 1970, I'll allow you to draw whatever conclusions you want from the social issues of the late '60's in Illinois)

Illinois has always argued that the 2nd is unenforceable on the states and they have won even at the Supreme Court (Presser v Illinois). Their legal arguments are solid and conform to present Supreme Court rulings including Heller.


Too bad they don't conform to the Constitution. It says that the right to keep and bear arms can't be taken away or restricted. Period.

If/when we get a few more justices who care more about what the Constitution mandates, than about what mistakes the courts have made in the last hundred years or so, we can start to straighten out this mess.

Won't happen during Obama's administration, though.

[emmett]

Funny how there can be one Second Amendment and different variations of the law when interpreted by Appeals courts.

Handgun bans have never saved a single life. Gunowners have saved tens of thousands. The most dangerour highest murder rates in the nation are cities that have handgun bans.

[Rick OShea]

Too bad they don't conform to the Constitution. It says that the right to keep and bear arms can't be taken away or restricted. Period.

But it is well settled that the Bill of Rights was never intended to be applicable to the states. The 14th Amendment was ratified with that understanding and was crafted to include the first 8 Amendments.

Senator Howard introduced the proposed 14th Amendment this way:



"Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution; and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution, or recognized by it, are secured to the citizens solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or a prohibition upon state legislation. States are not affected by them, and it has been repeatedly held that the restriction contained in the Constitution against the taking of private property for public use without just compensation is not a restriction upon State legislation, but applies only to the legislation of Congress.*

'Now, sir, there is no power given in the Constitution to enforce and to carry out any of these guarantees. They are not powers granted by the Constitution to Congress, and of course do not come within the sweeping clause of the Constitution authorizing Congress to pass all laws necessary and proper for carrying out the foregoing or granted powers, but they stand simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them except by their own local constitutions, which may be altered from year to year. The great object of the first section of this amendment is, therefore, to restrain the power of the States any compel them at all times to respect these great fundamental guarantees.'"

Of course the Supreme Court scuttled and delayed this from happening with the "selective incorporation" doctrine allowing a myriad of unconstitutional law to continue to assault liberty.


If/when we get a few more justices who care more about what the Constitution mandates, than about what mistakes the courts have made in the last hundred years or so, we can start to straighten out this mess.

Agreed


Won't happen during Obama's administration, though.

And it's not just that "it won't happen" it's that the travesty is being engineered . . . In Obama's opinion the Constitution has a fatal flaw that needs to be addressed and rectified. The best way to do that is to seat activist judges in the federal system cause like Sonia says, those lower federal courts is where POLICY is made . . .