Justice Denied: Seventh Circuit Rejects Challenge to Gun Registration Law

200px-Diane_Wood_in_2008.JPGThe Seventh Circuit continues to push the envelope on the recently recognized individual right to bear arms. In an interesting opinion by Judge Diana Wood, a three-judge panel ruled that the town of Cicero could still require gun registration without violating the Second Amendment. In the meantime, litigation is being planned over the Montana law claiming that guns in the state are exempt from federal jurisdiction and enforcement. Cicero businessman John Justice brought the challenge.

Justice was the subject of a police raid looking for the improper storage of chemicals related to his laminating company. They found six unregistered handguns during the raid.

The opinion is authored by Judge Diane Wood (my top choice of the nomination given to Justice Sonia Sotomayor). In the 3-0 opinion, Wood explains that the Court in District of Columbia v. Heller did not rule out reasonable regulations like Cicero’s ordinance: “The town does prohibit the registration of some weapons, but there is no suggestion in the complaint or the record that Justice’s guns fall within the group that may not be registered,. Nor does Heller purport to invalidate any and every regulation on gun use.”

Notably, she was joined not only by John Tinder, a George W. Bush appointee, but William Bauer who was part of the ruling in In National Rifle Association v. Chicago, where 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.

Wood directly addresses the controversy over the incorporation of the Second Amendment right to the states and insists that it would not change the outcome of the case –even if it does apply:

If, as we have held, the Second Amendment does not apply to the states and their subdivisions, then Justice has no case. Even if we are wrong and the Ninth Circuit has proven to be the better predictor of the Supreme Court’s rulings, there is a critical distinction between the D.C. ordinance struck down in Heller and the Cicero ordinance. Cicero has not prohibited gun possession in the town. Instead, it has merely regulated gun possession under § 62-260 of its ordinance. The Town does prohibit the registration of some weapons, but there is no suggestion in the Complaint or the record that Justice’s guns fall within the group that may not be regis-
tered. See § 62-261. Nor does Heller purport to invalidate any and every regulation on gun use; to the contrary,
the Court in Heller disclaims any such intent:

“Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone
through the 19th-century cases, commentators and courts routinely explained that the right was not a
right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. . . .
For example, the majority of the 19th-century courts to consider the question held that prohibitions on
carrying concealed weapons were lawful under the Second Amendment or state analogues. . . . Although
we do not undertake an exhaustive historical analysis today of the full scope of the Second Amend-
ment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
128 S. Ct. at 2816-17 (citations omitted).”

Thus, even if we are wrong about incorporation, the Cicero ordinance, which leaves law-abiding citizens free to possess guns, appears to be consistent with the ruling in Heller.

It is a position likely to secure a majority on the Supreme Court, in my view.
Here is the opinion: 073990p

100px-Montanastatesealthumb_weapon_gun_smith_and_wesson_hand_ejectorAn equally questionable challenge is being planned in Montana. Legislators passed the “Montana Firearms Freedom Act” that purports to exempt from federal regulation firearms, ammunition, and firearm accessories manufactured in Montana, to be sold only in Montana, and not to be removed from the state. While all states are struggling in this economy, Governor Brian Schweitzer (a democrat) signed the law, which will force residents to pay for needless litigation over a law that is likely to be struck down.

The law declares the following:

– 1 – Authorized Print Version – HB 246
Section 2. Legislative declarations of authority. The legislature declares that the authority for
[sections 1 through 6] is the following:
(1) The 10th amendment to the United States constitution guarantees to the states and their people all
powers not granted to the federal government elsewhere in the constitution and reserves to the state and people
of Montana certain powers as they were understood at the time that Montana was admitted to statehood in 1889.
The guaranty of those powers is a matter of contract between the state and people of Montana and the United
States as of the time that the compact with the United States was agreed upon and adopted by Montana and the
United States in 1889.
(2) The ninth amendment to the United States constitution guarantees to the people rights not granted
in the constitution and reserves to the people of Montana certain rights as they were understood at the time that
Montana was admitted to statehood in 1889. The guaranty of those rights is a matter of contract between the
state and people of Montana and the United States as of the time that the compact with the United States was
agreed upon and adopted by Montana and the United States in 1889.
(3) The regulation of intrastate commerce is vested in the states under the 9th and 10th amendments
to the United States constitution, particularly if not expressly preempted by federal law. Congress has not
expressly preempted state regulation of intrastate commerce pertaining to the manufacture on an intrastate basis
of firearms, firearms accessories, and ammunition.
(4) The second amendment to the United States constitution reserves to the people the right to keep and
bear arms as that right was understood at the time that Montana was admitted to statehood in 1889, and the
guaranty of the right is a matter of contract between the state and people of Montana and the United States as
of the time that the compact with the United States was agreed upon and adopted by Montana and the United
States in 1889.
(5) Article II, section 12, of the Montana constitution clearly secures to Montana citizens, and prohibits
government interference with, the right of individual Montana citizens to keep and bear arms. This constitutional
protection is unchanged from the 1889 Montana constitution, which was approved by congress and the people
of Montana, and the right exists as it was understood at the time that the compact with the United States was
agreed upon and adopted by Montana and the United States in 1889.

For the full law, click here.

While there is an argument to be made as to the original understanding of the commerce clause, past cases have applied a broad definition of interstate commerce. Article I, Section 8, Clause 3 states:

“[The Congress shall have power] To regulate commerce with foreign nations, and among the several states, and with the Indian tribes”

Not only did the Supreme Court adopt (and Congress later rely on) a broad interpretation of the clause to desegregate the nation, but it is a view that has been extended to other areas by the Court. One such analogous case is Gonzales v. Raich, where the Court voted 6-3 against such a claim by California to defend its law legalizing medical marijuana. Like the challenge to the federal gun laws, California legislators claimed that federal drug laws did not apply to cannabis raised and used exclusively within its state. The Court ruled:

“The Commerce Clause emerged as the Framers’ response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible. Then, in response to rapid industrial development and an increasingly interdependent national economy, Congress “ushered in a new era of federal regulation under the commerce power,” beginning with the enactment of the Interstate Commerce Act in 1887 and the Sherman Antitrust Act in 1890.

Justice Kennedy wrote with the majority and Justice Scalia wrote a concurrence supporting the result. O’Connor voted with the dissent (a seat now held by Justice Alito). In a passage that could be directly applied to the Montana law, the Court held:

Even respondents acknowledge the existence of an illicit market in marijuana; indeed, Raich has personally participated in that market, and Monson expresses a willingness to do so in the future. More concretely, one concern prompting inclusion of wheat grown for home consumption in the 1938 Act was that rising market prices could draw such wheat into the interstate market, resulting in lower market prices. Wickard, 317 U.S., at 128. The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market. While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity

In order to prevail, Montana would have to convince the Court to overturn decades of such precedent. It would also have to face loses in lower courts which would have little room to avoid cases like Gonzales v. Raich.

You can expect challenges soon after the law takes effect for any guns purchased at October 1, 2009. The rumor is that supporters of the law are going to try to be the first to court to bring a “challenge.” That would allow them to control the litigation — a prospect that should motivate gun control advocates to file first or simultaneously.

12 thoughts on “Justice Denied: Seventh Circuit Rejects Challenge to Gun Registration Law”

  1. The 7th circuit did vacate a mans sentence who was convicted of illegal posession with a misdemeanor DV conviction, finding that he may still have second amendment rights. I just want to comment on what a man said about this case, US vs Skoien.Tony Gibart is worried that this case might leave a wrong impression that firearm restrictions imposed on those convicted of domestic violence are somehow different in kind from similar restrictions on felons and those deemed mentally incompetent. The truth is they should be different. The key word here is misdemeanor. They can be trusted to hold public office, to vote and sit on a jury, but they cant own a gun, makes a whole lot of sense. Tony Gibart claims to have all this evidence, that seven victims have been killed with firearms with previous DV convictons. Guess what they still got there hands on guns. Out of all statistics shown I wonder if they ever show any about those being previosly convicted staying out of trouble lets say ten or twenty years, I doubt it because they claim that is goes unreported, and they feel that it give them justification to judge everybody the same. The truth is not everybod with a misdemeanor domestic violence conviction comes home on a daily basis and manipulates every aspect of there spouses lives. I wonder if the statistics of those with felony and misdemeanor convictions are separate, if not they should be because they are different classes of offenders. The statistics that are shown are only partial truths. If Skoines crime was severe enough to lose his second amendment rights he should of been charged with a felony he was not, this is a failure of the judges if they are failing to do so. Good people are losing there right to bear arms as something as a silly argument. I know a few women that claim that they are tired of people like tony gibart meddling with there lives over someting as silly as a argument with there spouse. If any type of intervention was required it should have been classified as a felony. Right now it is easier for violent felons to get there second amendment rights restored than those convicted with a misdemeanor domestic violence conviction. I guess it is okay to take a risk of someone being a menace to an entire society over family issues. To strip one of there rights over what they think he or she might do is purely unconstitutional. To treat felons better that misdemeanants is unconstitutional. The lautenberg goes far beyond domestic violence take this terror watch list for example, they are talking about putting returning veterans from iraq and afgahanistan on it that could strip them of there second amendment rights. This is a slap in the face to our men and woman serving in uniform. Might I remind Tony Gibart that if it werent for our veterans that they would not be able to exercise any right. It is time that the government and people like tony gibart to stop micro managing americans life. They are trying to strip away the second amendment slowly with amendment after amendment. To sentence one for exercising his constitutional right is tyrany. How can one lose a constitutional right when the offense was not severe enough to lose core civil rights. The ex po facto thing has been argued time and time again, how can memebers of congress dare say that losing your god giving constitutional right is not considered punishment. America please wake up.

  2. “One of the MOST infuriating, might makes right, mission creep, overarching grab for power by the federal government, is its stark ASSERTION that an activity occurring purely intrastate, STILL is subject to their jurisdiction.”

    Gary T,
    In this respect have you noticed how quick the FBI is now called in in what appear to be purely local crimes? This is something which I think you’re alluding to. While I’m not a big states rights person, it does seem to me that it is in all of our best interests not to have an overarching Federal Investigation Agency, watching us all. If we haven’t learned by now from the revealed operations of J.Edgar Hoover,
    and the overreach of the Bush NSA, what have we learned? In the USSR they had the KGB, it’s called something else in the new Russia, but in the end it’s all the same. To me the scariest test for the US in the years to come is going to be how to provide us our rights and freedoms, while protecting us against the forces of chaos, from whereever they spring. This is set against a backdrop where dialogue has become people yelling slogans at eachother, rather than having honest discussions.

  3. Gary T,
    Thank you for your thoughtful reply. This is indeed a tough area. I was outraged that people would be intimidated at Bush rally’s for wearing T Shirts or even bumper stickers, so I do think that we should be careful in limiting expression of constitutional rights. I do believe, however, that these open displays were meant in some way to intimidate and that is disturbing. What I find so scary about today is that I’ve always deeply believed that at least five percent of any human population is totally crazy. If only one percent of gun owners were similarly nuts, there are a lot of dangerous people running around. I understand though that you can’t legislate across the board based on one percent, so it is a problem.

    Having as I said earlier actually reading three NRA house magazines was a frightening experience and I’m supportive. I think that a combination of threats against gun ownership and the driving force of gun industry money has moved the NRA further out than it need be. While I’m not a gun owner, if I lived in a place where my nearest neighbor was a half mile away I would obtain more than adequate firepower. Then too if I was into hunting I would be angry if people tried to limit my ability to do so, within reason, since I don’t like the guns in National Parks idea. I’ve camped in many of them across the country and where most people you meet there are great, I have had some creepy experiences.

    To me the thing to do would be for the NRA to take the high ground and distance themselves from people who would bring firearms to Pesidential, or political gatherings. This would do them credit and preclude the possiblity of legislation. To me the greatest difficulty in this is that while the local LEO’s and the SS have to keep a close eye on these guys openly carrying, their forces are spread thin, opening the way for a real assasin, without a visible weapon to strike.

  4. Mike S:

    Firstly, I don’t think it is responsible gun ownership, that is my opinion, but I have seen principled arguments asserting the point is the absolute right to carry, and that that should not be infringed.
    They also argue that this the way the bar shifts as to what is or is not socially acceptable, citing Rosa Parks’ socially unacceptable sitting in the wrong seat on a bus.

    I have had heated discussions with my libertarian friends on this (where I am considered something of a maverick; they want to call me a liberal, but they know that I am as thoroughly libertarian as they come).
    They insist that it is NEVER inappropriate to exercise a constitutional right.

    I pointed out that just because something is legal doesn’t mean it is the right thing to do. I think that bringing a gun to a presidential rally where the topic of conversation is health care, is tangential and unnecessarily threatening. If the rally was about gun ownership then that might be a different story.

    I pointed out that this is an area where an Asperger person might have a tough time – they understand the absolute black and white of laws and fundamental rights, but they stumble in understanding the variations of grey as it applies to civil discourse, politeness, and consideration in social get togethers.

  5. Gary T,
    Knowing I support the Second Amendment, what do you think should be done, if anything, about people congregating with guns and semi-automatic rifles openly displayed near where the President, or any other Congrssional official speaks? Do you believe that this is responsible gun ownership? If you don’t then what is to be done about it?

    I myself am honestly puzzled, but I belive that the freedom to own a weapons should not be seen as the freedom to intimidate with it.

  6. One of the MOST infuriating, might makes right, mission creep, overarching grab for power by the federal government, is its stark ASSERTION that an activity occurring purely intrastate, STILL is subject to their jurisdiction.
    The whole idea of a LIMITED federal government was jurisdiction over interstate activities only.
    If by a sheer slight of hand verbal reassigment of meanings, an argument is made that ANYTHING you do intrastate still affect interstate commerce, then you have gutted the whole juridictional contraint. This is bullsht, and if I were a state, I just wouldn’t stand for it.
    The Supreme Court says, “federal law is what we say it is.
    We say that anything you do, based upon 4 levels of probablistic inference removed, could affect interstate commerce. Therefore we say it too is under federal jurisdiction”
    Note the sly shift, it no longer is something that affects interstate commerce, but rather something that CAN have an affect on interstate commerce.
    The Constitution doesn’t say THAT!

    If I were a State, like Montana or California, I would affirmatively and actively oppose illegal federal enchroachment where they simply do not have legal jurisdiction. If the state law makes an affirmative effort to factually strip the subject activity from federal jurisdiction, then that must be the jurisprudent presumption that must be overcome on a case by case basis.


  7. I’ve openly stated my support for the Second amendment, but lately I’ve come to see that some balance needs to be injected into this. The blatant and now frequent show of arms outside of where the President is speaking, the need for a State like Texas to make a law guaranteeing the right to bears arms in a bar, or a church and actually reading four issues of the NRA’s house magazine has begun to work on me. The image of responsible citizens bearing arms for hobby, hunting and protection, begins to get mixed in with crazy people trying to intimidate the national political debate with weaponry. Mix this in with the fact the NRA is controlled by the weapons industry and it begins to seem that some responsible controls must be put in place. I would definitely want to know if any restaurant or bar I went into had people packing. Frankly, I wouldn’t patronize the place, because even crazy people like to eat, drink and carry heavy armament. To those who might say, but if everyone was carrying a weapon I’d be safer from the crazies, I’d reply in one word: crossfire.

  8. Does defining the right to own a weapon (type to be determined later) and to defend yourself as a civil right change some of the direction of the discourse on gun ownership? Specifically will precedent change if Heller is incorporated the way many precedents did with voting, abortion and other similar issues?

    Also, there is a debate on the reasonable conservative side as to whether or not there should be incorporation. Left to their own, each state can (and has) define the right to bear arms with about 2/3rds affirming the right (including IL) and the others not having provisions in their constitutions. Does a similar debate exist on the left too?

    In the end Second Amendment rights will take the same path as the others: years of definition, lawsuits, and public policy with a cultural sea change in some direction and an overall shift in attitudes. (See voting rights) As with abortion there will be set attitudes philisophically and the majority of the country will end up live and let live” I suspect.

  9. So, mistaking a 78 year old man for a clipped wing quail is a state’s right issue…

  10. “…Nor does Heller purport to invalidate any and every regulation on gun use….”

    Thank you, your honor. Someone is FINALLY stating that fact!!

  11. Why register Guns to start with. You know Criminals are the ones that have Guns and that why we as Americans have to be able to defend ourselves. Law Enforcement has guns too, but with the use of tasers why waste the bullet. You have to write up each and every time you unholster your weapon.

    In reality Cops and Criminals have guns that are not registered. The LEOs call these throw downs. They have to defend themselves don’t they?

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