The 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
An 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.