The Seventh Circuit Court of Appeals decided the case of National Rifle Association v. City of Chicago. The suit was filed by the NRA and others against the City of Chicago and Village of Oak Park which have ordinances that ban the possession of most forms of handguns. The suit was filed in the wake of the Supreme Court’s decision in District of Columbia v. Heller which struck down D.C.’s handgun ban.
The Seventh Circuit declined to apply Heller to subdivisions of the state, reasoning that Heller applied the Second Amendment to the federal government. In the past, the Supreme Court has rebuffed efforts to apply the Second Amendment to the states. In this case, Judge Easterbrook reasoned that, while the rationales for not applying the Second Amendment to the states may well have been undermined by subsequent decisions, it was the Supreme Court’s prerogative — and not that of the Seventh Circuit — to bury past Supreme Court precedent when the time comes.
I have no strong feelings regarding Heller or application of the Bill of Rights to the states via the 14th Amendment. I think that reasonable people can come down on both sides of the Heller decision. In fact, I think Steven’s dissent is one of the best written, most persuasive “liberal” decisions ever written. I don’t really fully understand the use of the 14th Amendment to apply the Bill of Rights to the states (I took a seminar on the 14th Amendment in law school and still never really understood it). However, that train has long left the station–it is very clear that the 14th Amendment, inter alia, applies the Bill of Rights (or at least portions of it) to the states–there are no justices who would undo that principle.
I acknowledge that Heller explicitly leaves the door open regarding application of the 2nd Amendment against the states. However, it seems odd to me that a right that is explicit in the constituion (the right to bear arms) would be excluded from state application, while rights that are not explicitly mentioned in the consitution (contraception, abortion, sodomy) would get state application. [Note: I am not making an argument here about whether Griswold, Roe, or Lawrence correctly determined a fundamental right–I am just saying that those rights are not explicitly included in the consitution whereas the right to free speech or the right to bear arms are.]
Sorry for the typos in the previous (and likely, future) post.
Once again, appellate court judges have demonstrated that they have zero understanding of the fundamental nature of sacred individual rights, as well as zero understanding of how to read plain written English.
I think their point is that their understanding doesn’t matter in this context – they feel it’s not their place to second guess the Supreme Court. If the Supreme Court wants to disavow prior decisions on the applicability of the Second Amendment to the states, then it’s up to the Supreme Court to do so affirmatively.
I still don’t see how that’s a good reason…individual rights, after all, are more important than bureaucratism.
Jeff, I’m with you on the rationale for applying the Bill of Rights piecemeal to the states via the 14th Amendment. It’s never seemed coherent to me, and I can’t find it in myself to blame my own dimwittedness for lack of understanding on this one.
For what it’s worth, Wikipedia has a pretty good entry on “Incorporation” of the Bill of Rights. According to it, the Supreme Court has adopted Justice Frankfurter’s approach to incorporation which requires that the states be bound by enumerated rights, the abridgement of which by the States would “shock the conscience” — necessarily a subjective approach, no matter how case law might try to dress it up as objective.
No, it is not a case of judges not being able to read the Constitution but a lack of understanding of the Constitution’s application. Not all of the Bill of Rights applies to the states and the Second is one of them. I remain puzzled why the gun lobby wants to federalize the Second Amendment when the state Bills of Rights more often are clearer about their coverage. (Take a look at Indiana’s analog for an example). Maybe the gun lobby is ignorant of the state Bills of Rights?
“Not all of the Bill of Rights applies to the states”
Sure they do.
The Second contains no language explaining how it is restricted in scope to only the Federal government.
And besides, one’s right to own weapons exists independent of, and prior to, the U.S. Constitution, and it is this prior principle that governments are obligated to adhere to regardless of what the Constitution says.
“…it is this prior principle that governments are OBLIGATED to adhere to REGARDLESS of what the Constitution says.” Oh, really? From whence does this “obligation” derive, and which of the many, many various and sundry “principles” professed by individuals over the millenia prior to the Constitution do we choose?
>>Sure they do.
>>The Second contains no language explaining how >>it is restricted in scope to only the Federal >>government.
The entire bill of rights originally applied only to the federal government, not to the states. No one disputes this.
After the 14th Amendment was passed, its “due process” clause “…nor shall any State deprive any person of life, liberty, or property, without due process of law” was (eventually) held to require states to follow most (but not all) provisions of the bill of rights. This has been done on a piecemeal basis, however, and the court has never held – nor, really, had the opportunity to hold – that the 2d amendment applies to the states.
Which is why the 7th ruled as they did – because they supreme court has not held that the 2d applies to the states, the 7th is going to follow the Sct and not make that ruling themselves.
The losing party is, of course, able to appeal to the Sct, who will be free to decide whether the 2d applies to the states or not.
“The losing party is, of course, able to appeal to the Sct, who will be free to decide whether the 2d applies to the states or not.”
The Supreme Court is not a valid authority on this matter. It has been wrong before.
The Constitution says what it says; the Supreme Court’s (usually incorrect) opinion of what it says does not change what it actually says.
Objective moral principle, as first discovered by the eminent 20th-century Russian-American philosopher Ayn Rand, trumps the word of a government that claims the authority to determine for itself the limits on its power.
And that’s why we need a right to bear arms…the best use for a shotgun, after all, is in its application to the deprogramming of Randroids.
Hey look! Serdar Argic, I mean, Branden Robinson is back!
While not condoning the exchange of ad hominem critiques here, I do have to be a little impressed by the quality.
Serdar Argic for those who are unaware, was a Usenet spammer who posted rants about the Armenian Genocide. 1994 was when I first logged on to the Internet proper and about when that spam was getting underway, so it was a formative part of my Internet experience.