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. mespo, I wasn’t aware of the placement intention. That does lend strength to Scalia’s argument. But one wonders then about the purpose of the “well organized Militia” language. It appears superfluous. Superfluous language in statutes offends my sense of order and logic.

  2. That Heller footnote referenced by the 7th Circuit noted that

    “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”

    That later “inquiry” led to the incorporation of the 1A. Such an inquiry as applied to the 2A, particularly given the general “right of the people” reading given by Heller, would logically incorporate the 2A too.

    Both the 2nd and 7th Circuits avoided this by short opinions of less than ten pages, basically reasserting pre-Heller precedents in their own circuits. Heller also wasn’t pro-federalism. It did not strike down a federal rule over state action. It concerned the District of Colombia. It spoke in general terms about the right to bear arms. So the 7th Circuit’s honoring federalism is somewhat dubious.

    The Heller footnote did say that the SC “reaffirmed that the Second Amendment applies only to the Federal Government.” But, it did so long before the later “inquiry” began to be the rule. It did back in the day when the SC also did not apply the 1A to the states either. So just how powerful is that note?

  3. Mike A:

    Scalia went on ad nauseaum in Heller about the historical context of the right to bear arm (as opposed to moose arms, I suppose) and given the original placement of the amendment by Madison,* I think he is correct.

    * Wiki does a pretty good job of handling the topic:

    “The Bill of Rights introduced by Madison on June 8 was not intended to be added at the end of the Constitution. Instead, the Bill of Rights was to be inserted into the existing Constitution. The sentence that became the Second Amendment was to be inserted in Article I, Section 9, between Clauses 3 and 4, which list individual rights, instead of Article I, Section 8, Clauses 15 and 16, which specify the Congress’s power over the state militias.”

  4. Vince Treacy and CharlesC have already explained the doctrine of selective incorporation. Based upon the decision in Heller, I anticipate that the court will eventually rule that the right applies to the states as well. I disagree with the reasoning in Heller because I think the court gave short shrift to the prefatory clause (i.e., “A well regulated Militia, being necessary to the security of a free State,”)and effectively overturned U.S. v. Miller, although it pretended that it hadn’t. However, since the Heller Court concluded that the right to bear arms is an individual right (rather than a collective right) and pre-existed the Constitution, that logic and the Fourteenth Amendment strongly suggest that the states will fare no better than did the District of Columbia. The remaining issues will relate to the nature and extent of regulations which the states may properly impose on gun ownership. The Heller court left that question open and we will see extensive litigation over it in the coming years.

  5. Bron: No. Every justice takes an oath to uphold the Constitution. Read Article VI, section 3: Judicial officers of the United States are bound by oath to support the Constitution. All Justices are bound by this oath to sustain the Bill of Rights and Constitution.

  6. Vince:

    now I do understand, the Supreme Court has the ability to negate the Bill of Rights and constitution for whatever reason it chooses any time it can get 5 votes in favor.

    Does that about sum it up?

  7. “The question for the Supreme Court will be whether the 2d Amendment right should be added to the list of protections applicable to the states.”
    ____________

    That is, whether the 2nd Amendment provisions will be held incorporated against the other States in the other Federal judicial circuit court jurisdictions.

  8. FFLEO
    Until the Supreme Court rules otherwise, if it ever does.

  9. Bron, that is not correct. Please read the wiki link carefully. The Bill of Rights AT FIRST did not apply to states, so they could establish religions. Other rights had to be secured by state constitutions and bills of rights.

    But since the ratification of the 14th Amendment, many, but not all, of the protections of the Bill of Rights DO apply to the States. The states cannot do away with trials or due process, because those protections have been apllied to states by the Supreme Court.

    Read JT’s commentary. The question for the Supreme Court will be whether the 2d Amendment right should be added to the list of protections applicable to the states.

  10. “The issue for the Supreme Court will be whether it applies to the States. It now applies to states in the 9th Circuit (western states) but not to states in the 7th (midwest.”
    _______________

    Thanks, Vince Treacy. I am a NRA member and I reside in the 9th Circuit’s jurisdiction.

  11. “The 2nd Amendment keeps the federal government from denying citizens the right to bear arms, not the state governments”

    So we have rights that the Federal government cant take away but we dont have any rights at all if the state decides to do away with them? So the Bill of Rights and the Constitution were established to protect us from the federal government but not state governments?

    I think I understand, if California dosent like the 2nd amendment they can outlaw guns and if Montana doesnt want to have to worry about trials and due process they just get rid of the 5th amendment. I understand now.

  12. Vince,

    You’re darn tootin’ is doesn’t apply to the midwest. I just saw a truck driver who’s bumperstickers made that very clear–“If you want gun control, use both hands. and Criminals prefer unarmed victims”. So there you have it!

  13. There is a good discussion, helpful for both lawyers and non lawyers, at:

    http://en.wikipedia.org/wiki/Selective_incorporation

    CharlesC has stated the law, known as selective incorporation, correctly. The Bill of Rights at first limited only the Federal Government. For example, the states continued to support established churches, until the 1830s in Massachusetts when it amended its state constitution to disestablish the Congregational and Unitarian churches.

    The 2d Amendment initially applied to the Federal Government. It now applies to the District of Columbia, according to Heller. The issue for the Supreme Court will be whether it applies to the States. It now applies to states in the 9th Circuit (western states) but not to states in the 7th (midwest.

  14. We nonlawyers await a discussion from the likes of Mike Appleton, Vince Treacy, Mespo, David, Bob Esq., rafflaw, et al.

  15. Anon:

    as an engineer I can safely say that if you take one brick out it wont fall, unless of course it is a keystone.

  16. The 2nd Amendment keeps the federal government from denying citizens the right to bear arms, not the state governments; much like certain freedoms (like religion) were regulated by the states until the Supreme Court ruled that the 14th Amendment extended the Bill of Rights to cover state governments too. Each right, though, in the Bill was incorporated individually in different cases, not in total.

  17. Bron98,

    That was confusing for a layman, so the second amendment is not a fundamental right applicable to the states? I don’t understand that one. If I understand the Bill of Rights correctly they are individual rights granted to individuals and have nothing to do with state or federal governments conferring those rights. Dosent the Declaration say something about men being endowed with hard core rights just because they are humans and doesn’t the Bill of Rights codify those rights or at least enumerate some of the most basic ones as thought about by our founders?
    ****************************************************
    Surely you Jest. The 4th Amendment has no applicability outside the US, so do it not make sense that the 2nd Amendment is being decided this way? I was all against the Noreiga decision. It is kinda of like that stupid seat-belt law. It started out as a secondary offense and soon became an officers tool as a reason to do a pretextual stop. Take one brick out of the wall and how long does it take for the wall to fall?

  18. That was confusing for a layman, so the second amendment is not a fundamental right applicable to the states? I don’t understand that one. If I understand the Bill of Rights correctly they are individual rights granted to individuals and have nothing to do with state or federal governments conferring those rights. Dosent the Declaration say something about men being endowed with hard core rights just because they are humans and doesn’t the Bill of Rights codify those rights or at least enumerate some of the most basic ones as thought about by our founders?

    I am really confused, we say that the people have a right to bear arms, the second amendment no less, but at the same time we say that the states can deny ownership of guns or even regulate them into obscurity.

    Will one of the great lawyers on this web site help me understand how individual rights can be extinguished by a state because a fundamental right is not a fundamental right.

    I must be missing something because I have no legal training.

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