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.