7th Circuit: 2nd amendment NOT incorporated; upholds Chicago handgun ban (Congress, generations)
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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.
So they left in place, another government restriction that disarms law-abiding citizens while leaving lawbreakers armed.
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.
Since 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.
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.
Moderator cut: copyright issues
(Full text of the article can be read at the above URL)
This was done by a three-judge panel of the 7th Circuit. Anyone know if they will reconsider with the full court (en banc), or just go straight to the Supremes?
This was done by a three-judge panel of the 7th Circuit. Anyone know if they will reconsider with the full court (en banc), or just go straight to the Supremes?
Wow, very, very interesting decision. To answer your question, when it's 3-0, the full court usually does not reconsider. I would be surprised if they did. So, thus far, 2 of 3 circuits have refused to expand Heller into non-federal territories... this particular ruling is striking in that it was written by Judge Easterbrook! and joined by Judge Posner! These are probably the two of the best conservative jurists in the nation. For one thing, it should hopefully silence the attacks on Judge Sotamayor as being "anti-gun" for her ruling in the 2nd Circuit.
The Heller decision failed to expand their reasoning to states; therefore, the prior precedents stand and those prior precedents all say that the 2nd amendment does not apply to states. The 9th circuit ruling that went against the prevailing wisdom is up for review to the full court -- I wonder if that will be reversed. If so, then the Supreme Court will probably not take up the issue and the states will be free as before to issue gun bans. Very interesting development.
This is actually better for us than if they had ruled against Chicago because it's practically a certainty that the SCOTUS will take it, or one of the other cases (the one sotomayor ruled on) and the 5 justices in the majority on Heller are still on the court. A split in the circuits, and the footnote in Heller on those old cases cited as saying the 2nd doesn't apply to states was practically begging for a case to come up so they could reverse it. The justices on the 7th seemed during the hearings and in the ruling to know this was going to go to the SCOTUS and that the old cases are heavily flawed. They made their brief ruling rather quickly. On to the SCOTUS...
This is actually better for us than if they had ruled against Chicago because it's practically a certainty that the SCOTUS will take it, or one of the other cases (the one sotomayor ruled on) and the 5 justices in the majority on Heller are still on the court. A split in the circuits, and the footnote in Heller on those old cases cited as saying the 2nd doesn't apply to states was practically begging for a case to come up so they could reverse it. The justices on the 7th seemed during the hearings and in the ruling to know this was going to go to the SCOTUS and that the old cases are heavily flawed. They made their brief ruling rather quickly. On to the SCOTUS...
You think that activist SCOTUS will reverse decades and decades of precedent?
Just a mini-note that the Constitution as adopted -- including with the amendments of the Bill of Rights -- applied only to the federal government. Passage of the 14th Amendment after the Civil War (an event which is seen by some as dividing our national history into that of the First Republic and the Second Republic) effectively incorporated the Constitution onto the states, but the effect was shortly all but undone in the Slaughter House Cases et al, leaving each amendment to be incorporated via separate judicial decision. The Second Amendment of course never has been. The decision in Heller was with regard to an ordinance (since replaced with a Heller-compliant version) in Washington, DC. The District is not a state, and while it has achieved some modicum of home rule over the past few decades, it remains a federally administered area, meaning that incorporation was no actual factor in that case at all.
"With respect to Cruikshank's continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases."
However the court couldn't rule on incorporation in Heller because it was a federal matter not a state case.
Just a mini-note that the Constitution as adopted -- including with the amendments of the Bill of Rights -- applied only to the federal government. Passage of the 14th Amendment after the Civil War (an event which is seen by some as dividing our national history into that of the First Republic and the Second Republic) effectively incorporated the Constitution onto the states, but the effect was shortly all but undone in the Slaughter House Cases et al, leaving each amendment to be incorporated via separate judicial decision. The Second Amendment of course never has been. The decision in Heller was with regard to an ordinance (since replaced with a Heller-compliant version) in Washington, DC. The District is not a state, and while it has achieved some modicum of home rule over the past few decades, it remains a federally administered area, meaning that incorporation was no actual factor in that case at all.
Quite true, the 14th Amendment applied the Bill of Rights to the states, but the courts gutted the 14th Amendment and the Civil Rights Acts in place at the time. In fact one of the targets of both the amendment and the acts were the disarming of Blacks by Southern gun control during Reconstruction. Specifically mentioned in Congress as a reason was the Second Amendment rights of the freed slaves. Blacks were disarmed and rendered defenseless against vigilantes.
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