Seventh Circuit, Sotomayor, and the Second Amendment: Conservative Icons Easterbrook and Posner Support Sotomayor’s View of Right to Bear Arms

easterbrook200px-Sonia_SotomayorposnerThe United States Court of Appeals for the Seventh Circuit has handed down a decision that could play a role in the Sotomayor confirmation process. In National Rifle Association v. Chicago, the Seventh Circuit upheld a Chicago ordinance banning handguns and automatic weapons within city limits. In so doing, it held that the individual right to bear arms is not a fundamental right applicable to the states. It is precisely the hypothetical that some of us discussed in the wake of the Supreme Court’s decision in District of Columbia v. Heller, which recognized an individual right to bear arms in the Second Amendment. It also supports the view of Judge Sonia Sotomayor, who has been criticized for two opinions (including one after the Heller decision) that rejected the right to bear arms as a fundamental right. Sotomayor received indirect support from two unlikely sources: conservative icons Frank Easterbrook and Richard Posner.

What is most striking about this decision is its author: Judge Frank Easterbrook, one of the most conservative judges on the court and a longtime candidate for a Republican nomination for the Supreme Court. He was joined by another Supreme Court candidate and leading intellectual: Richard Posner. Easterbrook and his colleagues (like Sotomayor’s panel) considered themselves bound by precedent: “The Supreme Court has rebuffed requests to apply the second amendment to the states.”

The panel cites concerns of federalism and the need for the Supreme Court to bring its decisions in line with Heller if incorporation is warranted:

That the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule…. Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon. How arguments of this kind will affect proposals to “incorporate” the second amendment are for the Justices rather than a court of appeals.

The panel (with two leading academics) uses a hypothetical right out of a constitutional law class:

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….

Our hypothetical is not as farfetched as it sounds. Self-defense is a common-law gloss on criminal statutes, a defense that many states have modified by requiring people to retreat when possible, and to use non-lethal force when retreat is not possible. Wayne R. LaFave, 2 Substantive Criminal Law §10.4 (2d ed. 2003). An obligation to avoid lethal force in self-defense might imply an obligation to use pepper spray rather than handguns. A modification of the self-defense defense may or may not be in the best interest of public safety—whether guns deter or facilitate crime is an empirical question, compare John R. Lott, Jr., More Guns, Less Crime (2d ed. 2000), with Paul H. Rubin & Hashem Dzehbakhsh, The effect of concealed handgun laws on crime, 23 International Rev. L. & Econ. 199 (2003), and Mark Duggan, More Guns, More Crime, 109 J. Pol. Econ. 1086 (2001)—but it is difficult to argue that legislative evaluation of which weapons are appropriate for use in self-defense has been out of the people’s hands since 1868. 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….

Chicago allows ownership of rifles and shotguns but required annual registration while concealed, semi-automatic and automatic weapons are prohibited. The Seventh Circuit upheld the ruling of U.S. District Judge Milton Shadur. For the district court ruling, click here.

Easterbrook, joined by Circuit Court Judges Richard Posner and William Bauer. They disagreed with the NRA in contradiction with the decision of the generally left-leaning United States Court of Appeals for the Ninth Circuit in Nordyke v. King.

Sotomayor’s two second amendment-related rulings follow a familiar pattern of relatively brief treatments of such questions. She voted on the panel in favor of the majority ruling that dismisses the right to bear arms as a fundamental right. In the first case, United States v. Sanchez-Villar (2004), the court states “the right to possess a gun is clearly not a fundamental right.” This case is less notable than the later ruling in Maloney v. Cuomo, a 2009 per curiam opinion, where she again joins a panel in rejecting the notion that the right to bear arms is a fundamental right. The panel relies on Presser v. Illinois (1886) that preceded the incorporation of rights through the due process clause — making its application more problematic for gun rights advocates.

However, the Seventh Circuit relies on some of the same cases in reaching the same result:

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.” The Court did not say that [these cases] 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 vitality on incorporation” is “a question not presented by this case.”

If there is a case with the highest possible odds for a Supreme Court review, this is it. Not only is there a split in the circuits (among the largest Second, Seventh, and Ninth Circuits), but this is a well-reasoned decision but two of the most famous intellectual in the federal court system.

For the full story, click hereThe Uni

28 thoughts on “Seventh Circuit, Sotomayor, and the Second Amendment: Conservative Icons Easterbrook and Posner Support Sotomayor’s View of Right to Bear Arms”

  1. rafflaw,

    Are not headlines the grab lines? I stand to be corrected.

  2. AY,
    Rush said that he could reconsider Sotomayor if she is pro-life. I believe that she is pro-choice so Rush won’t have the luxury of changing his feeble mind.

  3. I would have to agree that the Supremes are likely to” eliminate Cruikshank’s continuing vitality on incorporation.” I thought we were taught in law school to write better phrases than that!

  4. Cool thread. Wwo quick comments:

    (1) Respectfully, I don’t think it’s quite right to say that the Seventh Circuit “held that the individual right to bear arms is not a fundamental right applicable to the states.” The court was silent on that issue. Whether a right is “fundamental” turns on a modern substantive due process or selective incorporation analysis under the 14th Amendment — a task the Seventh Circuit expressly left for the Supreme Court. Instead, the Seventh Circuit simply noted that there are three very old Supreme Court cases still on the books which held that the Second Amendment does not apply directly against the states. These cases are so old that they pre-date the 14th Amendment incorporation doctrine, and their reasoning is quite dubious (e.g., two of them also held that the First Amendment did not limit the states). But precedent is precedent, and so the Seventh Circuit dutifully followed it (quite properly, in my view).

    (2) I am biased and probably overly-sensitive, but I really wish people wouldn’t refer to this case as the “NRA” case. This case was originally brought by Alan Gura — a lawyer who has nothing to do with the NRA (and who also argued Heller). Alan’s case is McDonald v. Chicago. The NRA filed a copycat suit a day later (much like they did in Heller), and managed to get it consolidated with McDonald. But the McDonald half of the case is much more interesting and principled. Alan (along with several amici) is arguing that the incorporation of the Second Amendment should be done via the Privileges and Immunities clause, rather than the Due Process clause. This case present a very real opportunity for the Supreme Court to reverse the Slaughter-House cases (a horrible Supreme Court opinion that completely ignored the text, meaning, and history of the Privileges or Immunities clause), whereas the NRA is proceeding with a rather boring and ahistorical selective incorporation argument.

    I do agree that this case has the best shot at the Supreme Court now. (The Second Circuit case probably/hopefully won’t make it, since that case implicates the additional issue of whether nunchucks are “arms” under the Second Amendment). Regardless, here’s hoping the Court will reexamine the Slaughter-House cases soon!

  5. Joe, your comments suggest that the 7th Circuit sees the handwriting on the wall and just determined to kick it up to the Supreme Court, which will then eliminate “Cruikshank’s continuing vitality on incorporation.”

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