NRA v. City of Chicago

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In NRA v. City of Chicago, 567 F.3d 856 (7th Cir. June 2, 2009), a unanimous panel of the Court of Appeals held that the Second Amendment does not apply against state and local governments, at least under existing Supreme Court precedents. The U.S. Supreme Court has granted certiorari in this case to review this decision.

Judge Frank Easterbrook wrote for the panel, which included Judge Richard Posner. The Court rejected applying incorporation doctrine to include the Second Amendment with virtually other right in the Bill of Rights to protect citizens against state and local government laws that infringe on fundamental liberties. The Court declined to extend the seminal decision of D.C. v. Heller, which invalidated a law in D.C. based application of the Second Amendment against Congress, to a law against gun ownership imposed by the City of Chicago.

Judge Easterbrook wrote:

The Supreme Court has rebuffed requests to apply the second amendment to the states. See United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 (1876); Presser v. Illinois, 116 U.S. 252, 6 S. Ct. 580, 29 L. Ed. 615 (1886); Miller v. Texas, 153 U.S. 535, 14 S. Ct. 874, 38 L. Ed. 812 (1894). ... Anyone who doubts that Cruikshank, Presser, and Miller have "direct application in [this] case" need only read footnote 23 in Heller. It says that Presser and Miller "reaffirmed [Cruikshank's holding] that the Second Amendment applies only to the Federal Government." 128 S. Ct. at 2813 n.23. 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.

The above holding decides the case, but the Court added in dicta three separate arguments against assertion of the Second Amendment against local laws:

  • One function of the second amendment is to prevent the national government from interfering with state militias. It does this by creating individual rights, Heller holds, but those rights may take a different shape when asserted against a state than against the national government. Suppose Wisconsin were to decide that private ownership of long guns, but not handguns, would best serve the public interest in an effective militia; it is not clear that such a decision would be antithetical to a decision made in 1868. (The fourteenth amendment was ratified in 1868, making that rather than 1793 the important year for determining what rules must be applied to the states.) Suppose a state were to decide that people cornered in their homes must surrender rather than fight back--in other words, that burglars should be deterred by the criminal law rather than self help. That decision would imply that no one is entitled to keep a handgun at home for self-defense, because self-defense would itself be a crime, and Heller concluded that the second amendment protects only the interests of law-abiding citizens. See United States v. Jackson, 555 F.3d 635 (7th Cir. 2009) (no constitutional right to have guns ready to hand when distributing illegal drugs).
  • The way to evaluate the relation between guns and crime is in scholarly journals and the political process, rather than invocation of ambiguous texts that long precede the contemporary debate.
  • Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon, and states may abrogate the right or self-defense or limit it to use of certain types of weapons other than handguns.

Senior Judge William J. Bauer, who was appointed to the bench by President Gerald Ford, was the third panel member who joined this decision.

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