Posted on 06/11/2009 2:34:38 PM PDT by neverdem
Why the Supreme Court should strike down Chicago's handgun ban
Last year's landmark Supreme Court decision in District of Columbia v. Heller definitively settled the fact that the Second Amendment guarantees an individual right—as opposed to a collective one—to keep and bear arms. Yet that ruling applied only to the federal government (which oversees Washington, D.C.). Does the Second Amendment apply against state and local governments as well?
Although Heller never answered that question, Justice Antonin Scalia's majority opinion did provide a very potent hint. In footnote 23, Scalia observed that while the Court's earlier ruling in U.S. v. Cruikshank (1876) stated that the Second Amendment did not apply against the states, "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."
To appreciate Scalia's meaning, consider that the Supreme Court has been protecting First Amendment rights from state and local abuse since 1925's Gitlow v. New York. The Court has done so under the so-called incorporation doctrine, whereby most of the Bill of Rights and certain other fundamental rights have been incorporated against the states via the Due Process Clause of the 14th Amendment, which reads, "nor shall any state deprive any person of life, liberty, or property, without due process of law." Cruikshank is therefore a dead letter when it comes to free speech. So why should it still matter for gun rights? As the footnote basically points out, Cruikshank was decided before incorporation had even been invented. So it's the modern incorporation doctrine that matters now, not the long-dead reasoning behind Cruikshank.
This controversy lies at the center of last week's unfortunate decision in National Rifle Association v. Chicago (formerly McDonald v. Chicago), where the federal 7th Circuit Court of Appeals held that the Second Amendment offers zero protection against the draconian gun control laws currently in place in Chicago and Oak Park, Illinois.
It's a mistaken and also strangely misguided decision, as plaintiff's attorney Alan Gura (who previously argued and won Heller) demonstrates in the appeal he quickly filed with the Supreme Court. As Gura notes, not only did the 7th Circuit decline "to perform the required incorporation analysis," the court "erred in failing to heed Heller's cautionary statement that the pre-incorporation relics [including Cruikshank] lack ‘the sort of Fourteenth Amendment inquiry required by our later cases.'"
Moreover, the 7th Circuit even suggested that federalism would best be served by letting the states disregard the Second Amendment entirely. "Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon," Chief Judge Frank Easterbrook wrote for the three-judge panel.
Yet as Gura rightfully responds in his petition, "To claim that of all rights, the Second Amendment must yield to local majoritarian impulses is especially wrong considering that the rampant violation of the right to keep and bear arms was understood to be among the chief evils vitiated by adoption of the Fourteenth Amendment." Indeed, the 14th Amendment was specifically written and ratified by the Radical Republicans after the Civil War to protect the recently freed slaves and their white allies from the depredations of the former Confederate states, including the infamous Black Codes, which curtailed property rights, liberty of contract, free speech, and the right to keep and bear arms.
The Second Amendment deserves the exact same respect as the rest of the Bill of Rights, nearly all of which have now been incorporated, something Gura is careful to explain. Which is precisely what the 7th Circuit should have said. Moreover, Gura persuasively argues that now is the right time for the Supreme Court to correct one of its most glaring historical errors by overturning the controversial Slaughterhouse Cases (1873), which essentially gutted the 14th Amendment's Privileges or Immunities Clause, which reads, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." As numerous legal historians have now documented, the text, original meaning, and history of that clause all point in one direction: It was designed to nationalize the Bill of Rights and other substantive rights.
The 7th Circuit essentially breezed past this argument, though it's perhaps worth noting that Judge Easterbrook did so while repeatedly referring to the "Privileges and Immunities Clause," which is actually located in Article IV of the Constitution, when he quite clearly meant to write (and refer to) the 14th Amendment's "Privileges or Immunities Clause." It's a small error, to be sure, though it's still one that the federal circuit ought not to make.
So what does all this mean for the future of the Second Amendment and gun rights? Last January, the 2nd Circuit, including Supreme Court nominee Judge Sonia Sotomayor, reached the same erroneous conclusion about incorporation as the Seventh did last week. Yet in April, the 9th Circuit got it right, holding in Nordyke v. King that, "the right to keep and bear arms is 'deeply rooted in this Nation's history and tradition'... [and] is necessary to the Anglo-American conception of ordered liberty." This split among the circuits means the Supreme Court will almost certainly take up the issue.
Given that Gura's provocative and sharply reasoned appeal is now in the Court's hands, and given that Chicago's contested handgun ban so closely resembles the D.C. ban nullified last year in Heller, this case offers the perfect opportunity for the Court to fully restore the Second Amendment to its rightful place in our constitutional system.
Damon W. Root is an associate editor at Reason.
Bonus video: Reason.tv talked with Alan Gura last June about "The High Stakes of the DC Gun Ban Case" just before the Supreme Court released its decision in the Heller case. Click below to watch and go here for downloadable versions and related materials.
Why didn’t SCOTUS settle this when they handled the Heller case?
Heller involved a federal (D.C.) law, so the Court had no ability to decide anything relating to state laws.
Because it wasn't before them. Heller involved Federal law. The Constitution gives the Congress exclusive legislative authority in The District of Columbia. Hence the question in Heller was "may the Federal government ..."
Courts decide the case before them. In Heller there was no question of state regulation of firearms. That situation is reserved for such a case. Judges don't decide issues not before the court.
Jack
If that is true, why does their decision which is always limited to the case before them, always wind up being the law of the land. Well at least those decisions that promote perversion.
Either it is struck down or Chicago succeed from Illinois and thus, by default, succeed from the Union.
JoMa
That’s because the decision applies to similarly situated cases in the future but not to cases with different factual posture.
Jack
The Corrupt city is still stuck on 1968 with the Daley Machine in power.
Bushwah. Personal weapons were in use long before anyone was worrying about federalism as a concept.
It's unusual for the SCOTUS to take a case based on a DC statute. Those "law of the land" cases are usually interpretation of federal (nationwide, not limited to DC) or a state law.
FWIW, I differ with the premise and conclusion of the article. The RKBA does NOT depend on the 2nd amendment for vitality, and it's my hope that the 9th Circuit takes back the part of its Nordyke decision that "incorporates" the 2nd. That way there will not be a split among the Circuits, and SCOTUS can tell Gura that it won't hear the Chicago case.
It's going to take a hard slap in the face before the flaccid gun-right people actually READ the precedents that they currently hold in disregard.
The Miller and Presser cases are GOOD for gun-rights proponents, but they have been either cowed or lulled into accepting the crumbs that later Courts have sent back to the people.
The selection of the individual plaintiffs is another example. The case didn't arise as many do, from the arrest of a guy we all know is a bad guy, whose conviction is appealed over some aspect of Constitutional procedure. Dick Heller was a security guard who carried a gun all day and somehow managed never to shoot anyone who didn't need shooting, so how could DC say that it would be dangerous to let him have a gun at home?
The case was manufactured in a sense. I think Heller intentionally moved to DC in the seventies just so he could eventually bring this case. Heller was smallball in a sense, leaving SCOTUS no excuse to find against him. Having secured a beachhead with a victory in a case with extreme regulation in a federal enclave and a sympathetic plaintiff, and a finding that 2A is indeed an individual right, they can now use that as a stepping stone to more useful rulings.
If the Court is ever tilted in favor of the Constitution, a similar approach would be good for dealing with NFA'34: have the Second Amendment Foundation register an M16A1 for $200 and sue for a refund of the tax amount. That was the approach used by Thompson/Center v. U.S., which established that a collection of parts which could be assembled into either a pistol or a short-barreled rifle does not constitute a short-barreled rifle unless it is actually assembled as one.
Miller is obvious. Why can't the militia use a short barrel? What's good about Presser? I want a ruling ASAP.
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Miller was obvious before Scalia and company misconstrued it in Heller. Now District Courts are using the Miller dicta from Heller to convict people who run afoul if the 1934 NFA. US v. Fincher, 538 F3d 868, 873-74 (8th Cir 2008), US v. Gilbert, 286 Fed. Appx 383, 2008 WL 2740453 (9th Cir. July 15, 2008), and US v. Hamblen.
Whatever merit there is to [the] argument [that Heller's construction of Miller does not square with Miller], however, this Court is bound by the Heller opinion as written.
The Hamblen case is on appeal before the 6th Circuit, Case No. 09-5025. Hamblen is arguing very directly that the Heller Court misconstrued the Miller decision. The government's brief basically says that the later decision(Heller) controls - and then argues solely from the Heller decision. The "In common use" test devised from thin air by Scalia is the law of the land.
As a matter of fact, short barrel shotguns and rifles are COMMON, not UNCOMMON. They are not common in private hands because the federal government unconstitutionally limited public access to them, and now Scalia says it would be "startling" to read Miller correctly.
-- What's good about Presser? --
First, Presser is not a 2nd amendment case. The SCOTUS said so at the time. Presser is a parade permit case. Presser claimed that parading in public without a parade permit is protected by the 1st and 2nd amendments, the 2nd amendment when the parade marchers are carrying guns. But as in Heller, the SCOTUS left behind some useful dicta, which has been cherry-picked by a judiciary that is gun-rights hostile (and in practice, can only be removed from the bench by force, since Congress is also gun-rights hostile, and won't impeach obviously errant judges).
The dicta in Presser, relating to the 2nd amendment, cuts in two directions. Later Courts have reversed the meaning of Presser by isolating one component of the dicta. The short version in my paraphrase is, "The 2nd amendment does not limit states power as to regulating RKBA, but states may not prohibit RKBA because it deprives the feds of an armed reserve militia."
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the [second amendment] out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the [parade permit laws] under consideration do not have this effect.Presser v. Illinois, 116 U.S. 252, 265-66 (1886)
Thanks for the ping!
Second Amendment: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Based on the language, one could more easily argue that Utah is permitted to make Mormonism the state church than to argue that NYC can ban concealed carry.
FYI, there is no NEED for the Supremes to consider 2nd Amendment “Incorporation”! FACT: The 2nd Amendment is SELF-incorporated to all government entities at every level. It is MORE ABSOLUTE than the 1st Amendment, or any of the others, because the wording forbids not only CONGRESS, but ANYONE from infringing on it. The 1st says “Congress shall make no law...”. The 2nd say “shall NOT be infringed!” Period! End of debate!
As a legal technicality, the RKBA exists independently from the 2nd amendment. In other words, states (and municipalities) could not prohibit keep and bear arms, even if the 2nd amendment did not exist.
Extending that, the RKBA is binding against the states even if the 2nd amendment is not incorporated.
Similar is true for the 1st amendment. See US v. Cruikshank, 92 U.S. 542 (1875).
The first amendment to the Constitution prohibits Congress from abridging 'the right of the people to assemble and to petition the government for a redress of grievances.' This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone. Barron v. The City of Baltimore, 7 Pet. 250; Lessee of Livingston v. Moore, id. 551; Fox v. Ohio, 5 How. 434; Smith v. Maryland, 18 id. 76; Withers v. Buckley, 20 id. 90; Pervear v. The Commonwealth, 5 Wall. 479; Twitchell v. The Commonwealth, 7 id. 321; Edwards v. Elliott, 21 id. 557. It is now too late to question the correctness of this construction. As was said by the late Chief Justice, in Twitchell v. The Commonwealth, 7 Wall. 325, 'the scope and application of these amendments are no longer subjects of discussion here.' They left the authority of the States just where they found it, and added nothing to the already existing powers of the United States.The [first] amendment ... assumes the existence of the right of the people to assemble for lawful purposes, and protects it against encroachment by Congress. The right was not created by the amendment; neither was its continuance guaranteed, except as against congressional interference. For their protection in its enjoyment, therefore, the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States.
The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for any thing else connected with the powers or the duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances. If it had been alleged in [the indictment] that the object of the defendants was to prevent a meeting for such a purpose, the case would have been within the statute, and within the scope of the sovereignty of the United States. Such, however, is not the case. The offence, as stated in the indictment, will be made out, if it be shown that the object of the conspiracy was to prevent a meeting for any lawful purpose whatever.
The second and tenth counts are equally defective. The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen [in the discussion above, regarding the right of the people to petition the government], means no more than that it shall not be infringed by Congress. This is [another] one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constituton of the United States.
As regards the 2nd amendment, the people tolerate bald-faced liars for judges and legislators, even though the vast bulk of recorded precedent says that the people are to have the government under their thumb, and not the other way around.
You snooze, you lose.
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