Supreme Court Takes Chicago Handgun Case in Major Test of Second Amendment Rights

easterbrook200px-Sonia_SotomayorThe Supreme Court has accepted a major handgun case, McDonald v. Chicago, that will define the scope of the recently recognized individual right under the Second Amendment. It will also allow new Justice Sonia Sotomayor to vote on the very issue that led to much of the opposition against her in her confirmation.

We previously discussed the related appeal from the Seventh Circuit and, at the time, I noted that it had as good a chance for cert as any case that I have seen. In that case, the United States Court of Appeals for the Seventh Circuit handed down a decision that addressed the same issue ruled upon by then-Judge Sotomayor on the scope of the individual right vis-a-vis the states. 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 supported the view of 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. The decision in that appeal was particularly strong and was written by 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 cited 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.

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 by two of the most famous intellectuals in the federal court system.

In McDonald, Easterbrook framed the issue in uncomfortable terms for conservatives: asking if they care more about federalism or gun ownership. He noted 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.” Easterbrook said that that question would have to be answered by the Supreme Court and they appear to have received the invitation. The result will have a pronounced impact on gun ownership since states control the majority of restrictions and laws related to gun possession.

The high court took his suggestion Wednesday.

The case was notably brought by Alan Gura, the Alexandria, VA., lawyer who won the 2008 decision recognizing the individual right, District of Columbia v. Heller. The NRA v. Chicago is also pending with the Court and presumably will be held as related to the McDonald case and be cited in any decision after argument next year.

18 thoughts on “Supreme Court Takes Chicago Handgun Case in Major Test of Second Amendment Rights”

  1. Look, I don’t care about that highfalutin Supreme whatever it is, I just want to be able to bring my Sig Sauer SIG556 and P250 any damn place I want, you never know when bad people will show up, even at a Jonas Brothers Concert. Same goes for those crazies who go to see The Osmonds.

  2. Raiche style incorporation has no real basis in the Commerce Clause. It is inference upon inference, hence instrastate marijuana should have no federal regulability.
    The 2nd Amendment is one of the Bill of rights, very explicit and now certified as an individual right by the Scotus. To be picking and choosing which one of the bill of rights now applies to the states is really dirty sophistry.
    All of the bill of rights are applicable to the states.

  3. This case is potentially historic for another reason that few people (save a handfull of legal scholars) are talking about yet — namely that McDonald argues for incorporation of the Second Amendment via the Privileges or Immunities Clause, and thus asks the 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). This could totally change the Court’s 14th Amendment jurisprudence — not only with respect to incorporation, but also with respect to substantive due process.

    And I think the Court is seriously thinking about doing it. As I wrote in the comments of the previous post, the NRA case was proceeding with the ordinary Due Process/selective incorporation argument. Why did the Court choose the McDonald case? Quite possibly because it wants to correct Slaughterhouse.

    Here’s hoping.

  4. Prediction: Thomas votes against incorporation. He is a staunch federalist. Look at his dissent in Raich (SC holding that the Congress can regulate medicinal marijuana through commerce clause).

    It will be a 6-3 decision against incorporation.

  5. Automatic weapons? Since when were they legal?

    Anyway, while I can see the Court following the reasoning in Heller, I’ve been waiting for fifteen years to see if SCOTUS would ever incorporate the 2nd as good against the states.

  6. Reducing to absurdity: Does one “under” the second ammendment have the right to possess BNC (biological, chemical, nuclear) “arms”. If you want to say that these are not “arms” as envisioned by the founders…I will counter that neither are revolvers, automatic weapons, RPGs, or anything but breach loaded pistols/muskets/rifles. Thus…I am entitled to the centrifuge in my basement.

  7. Conservatives defend guns and are trying to prevent health care reform. They have no shame.

  8. MacK,

    Legal hermeneutics tries to standardize the way we interpret text, but with even sophisticated interpretation procedures people come up with differing opinions.

    The legal definition of ambiguity is two reasonable people looking at the same text and coming up with two meanings, both reasonable.

    That is why we had the 14th Amendment … it was said that some of the rights, even in the bill of rights, applied only to the federal government and not the state governments.

    I did not read it that way, but the 14th “made it clear” that certain of the bill of rights did in fact apply to the states too.

    Now we have this deja vu all over again and one of the bill of rights, the second, is once again part of the debate as to whether the rights apply only to the federal government.

    Crazy. Any human rights of the bill of rights type should axiomatically apply to all governments.

  9. Historically not all rights guaranteed by the Constitution has been deemed to be incorporated (I can’t think of an instance right now)so there is a question about the 2nd Amendment but the more interesting question about the 2nd Amendment incorporation is who is for it and who is against?

    It appears that both the right and the left are split on this issue. Some on the right feel that it is an imposition on the states to incorporate while others (the NRA, for example) feel that it is needed to promote their ideas.

    On the left there are those who feel that incorporation will kill off the anti-gun movement while others think that they can then regulate all firearms on a national basis and over-ride the constitutions of such states as AZ and VT by introducing federal standards regulating the carrying of arms, etc.

    I’ll get the popcorn.

  10. Am I not reading this correct? Are they arguing that states can reject the 2nd amendment if they so want? If that is the case then they can reject the 1st, so that in their state you can’t speak freely. They can reject the fourth, so that in their state you have no privacy, and a cop can peek in your windows while you have sex with your wife, because you may be growing weed in there. Hell many probably would like to ignore the 13th amendment, so they can get that cotton pick cheaper.

  11. Send em to that Ba in Arizona let em have a Beer with Obama. after about 15 beers whoever shoots the best decides the supreme law of the land. The rest well, move over to boot hill. I guess they are waiting for you.

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