NATIONAL RIFLE ASSOCIATION OF AMERICA, INC., et al., Plaintiffs-Appellants, v. CITY OF CHICAGO, ILLI

[jody]

Source: United States Court of Appeals Seventh Circuit

ARGUED MAY 26, 2009—DECIDED JUNE 2, 2009

Before EASTERBROOK, Chief Judge, and BAUER and POSNER, Circuit Judges.

EASTERBROOK, Chief Judge. Two municipalities in Illinois ban the possession of most handguns. After the Supreme Court held in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), that the second amendment entitles people to keep 2 Nos. 08-4241, 08-4243 & 08-4244 handguns at home for self-protection, several suits were filed against Chicago and Oak Park. All were dismissed on the ground that Heller dealt with a law enacted under the authority of the national government, while Chicago and Oak Park are subordinate bodies of a state. The Supreme Court has rebuffed requests to apply the second amendment to the states. See United States v. Cruikshank, 92 U.S. 542 (1876); Presser v. Illinois, 116 U.S. 252 (1886); Miller v. Texas, 153 U.S. 535 (1894). The district judge thought that only the Supreme Court may change course. 2008 U.S. Dist. LEXIS 98134 (N.D. Ill. Dec. 4, 2008).

* * * * * * * * * * * *

One function of the second amendment is to prevent the national government from interfering with state militias. It Nos. 08-4241, 08-4243 & 08-4244 7 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. See United States v. Jackson, 555 F.3d 635 (7th Cir. 2009) (no constitutional right to have guns ready to hand when distributing illegal drugs).

Our hypothetical is not as farfetched as it sounds. Selfdefense 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 8 Nos. 08-4241, 08-4243 & 08-4244 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. See Clark v. Arizona, 548 U.S. 735 (2006) (state may reformulate, and effectively abolish, insanity defense); Martin v. Ohio, 480 U.S. 228 (1987) (state may assign to defendant the burden of raising, and proving, self-defense).

Chicago and Oak Park are poorly placed to make these arguments. After all, Illinois has not abolished self-defense and has not expressed a preference for long guns over handguns. But the municipalities can, and do, stress another of the themes in the debate over incorporation of the Bill of Rights: 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. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (“It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”); Crist v. Bretz, 437 U.S. 28, 40–53 (1978) (Powell, J., dissenting) (arguing that only “fundamental” liberties Nos. 08-4241, 08-4243 & 08-4244 9 should be incorporated, and that even for incorporated amendments the state and federal rules may differ); Robert Nozick, Anarchy, State, and Utopia (1974). 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.

AFFIRMED


Read more: http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=rss_sho&shofile=08-4241_002.pdf

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This decision affects Sotomayor’s nomination because Judges Richard Posner and Frank Easterbrook, appointed to the 7th U.S. Circuit Court of Appeals in Chicago by President Ronald Reagan, took the same position as Sotomayor that the Second Amendment was not incorporated in the Fourteenth Amendment.

The case will most likely be accepted by SCOTUS along with Nordyke v. King, 563 F.3d 439 (9th Cir. 2009), to determine whether the 2nd Amendment is incorporated in the 14th Amendment like the 1st, 4th and other amendments.

[Hoopla Phil]

1. It's way past time for ALL of our civil rights to be incorporated.

[jody]

2. Agree including GLBT rights. Put them all beyond a simple majority of votes so minorities are

protected.

The recent decision on Prop 8 by CA's Supreme court puts mockery to "inalienable rights".

The natural-law jurisprudence reflected in passages from the few early judicial opinions relied upon by the Attorney General has been discredited for many years, and, in any event, no decision suggests that when a constitution has been explicitly amended to modify a constitutional right (including a right identified in the Constitution as “inalienable”), the amendment may be found unconstitutional on the ground that it conflicts with some implicit or extraconstitutional limitation that is to be framed and enforced by the judiciary. Although the amending provisions of a constitution can expressly place some subjects or portions of the constitution off-limits to the amending process — as already noted, some state constitutions contain just such explicit limits — the California Constitution contains no such restraints. This court would radically depart from the well-established limits of the judicial function were it to engraft such a restriction onto the Constitution in the absence of an explicit constitutional provision limiting the amendment power.

When does an "inalienable right" become an "alienable right", when CA's court says so.

[Euromutt]

7. In fairness to the California Supremes...

... it's not their fault that the California state constitution is badly written. One of the primary purposes of a constitution is to prevent a tyranny of the majority, so having a constitution that can be amended by a simple majority of the electorate defeats the point of having one at all.

So to rephrase the answer to your question:

Q: When does an 'inalienable right' become an "alienable right"?
A: When 50.1% of the California electorate says so.

[machI]

3. Hear here!

The GLBT groups need to take a page out of the play book for advancing gun rights. The two efforts are similar and the techniques employed by advocates of private ownership of firearms will also work for advocates of personal rights.

Rights precede the Government and are not up for a vote.

[xchrom]

4. so the right to be fully human is equated somehow with someone owning something? nt

[Jackson1999]

5. Of course not

It means having the right to defend oneself--and not having the the state deny you of common means to do that.

[jody]

6. No, the issue is what rights humans have that cannot be taken away by a simple majority of votes.

Our Constitution enumerates some and others are unenumerated but protected by the 9th Amendment.

[Statistical]

8. Thinking so small

To say the 2nd is to own something misses the point.

It would be analogous to saying "Whats the big deal about a piece of paper that says marriage on it".

As you expressed it isn't the paper it is the idea.
The idea that all people are equal under the law.

It isn't the firearm it is the idea.
The idea that one has an absolute right to bear arms in defense of self, family, home and state.

The BofR was never about concrete items. Time and technology changes all things. Internet didn't exist at time of founding but the 1st applies to it. The concept, the idea is that people have a right to free expression of ideas (even unpopular ones). The method will change with time but the concept doesn't.

Likewise the founders didn't need to worry about DNA evidence but the idea that you can not be subject to unreasonable search and seizure is an idea. I believe if founders were alive today they would believe that DNA is a form of search & seizure just as the courts have. The idea is what matters.

To say it is about owning something misses the mark on so many levels.

[Euromutt]

10. Or analogous to thinking the First Amendment...

... is about owning a Bible/Torah/Koran/(insert religious scripture of choice here) or a printing press.

Very well put, Statistical.

[Euromutt]

9. "Local differences are to be cherished," eh?

From the decision:

But the municipalities can, and do, stress another of the themes in the debate over incorporation of the Bill of Rights: 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.

How many gun control advocacy groups would accept that argument if it were applied to a local or state government choosing to ignore, say, a federal or state-level restriction on firearms?

Another small problem was that one of those "local differences to be cherished" was, according to a dozen states, slavery, and the 14th Amendment was passed in 1868 after that little four-year scuffle to resolve that particular disagreement. I'm pretty certain the Bill of Rights doesn't talk about rights being reserved to local governments either; it's "to the states respectively, or to the people."

[paulsby]

11. and more importantly

no state can RESTRICT a right recognized federally, they can only EXPAND them.

fwiw, i'll bet dollars to doughnuts the supremes (SCOTUS) will find the 2nd is incorporated to the states.

it's a near certainty imo

[Statistical]

12. I hope your right.

The only thing that worries me is....

Heller was 5-4. Despite the fact that Heller is now settled now judges are still human.

Technically the question is not does an individual right exist but does not right restrict states as well as fed govt.

So technically all 9 could vote yet but I don't see the 4 dissenters in Heller voting yes.
Under the letter of the law they should. They should accept Heller as settled and base their decision solely on if it is incorporated.
That won't happen though so that is 4 against.

All it takes is one. Kennedy?
One vote and it is 4-5

I am optimistic but I would be more confident if Heller had been 6-3 or if Souter was being replaced with someone from the 9th circuit (already ruled 2nd is incorporated).

[paulsby]

13. i'm more confident than you

but i have to admit it's largely based on the analysis i've heard from lawyers who are way more versed in this stuff than me, and have very good knowledge of how these judges tend to rule.

[Statistical]

14. Well I hope Nordyke doesn't appeal

That leave only Alan Gura in McDonald v. Chicago.

Chicago defense was laughable only reason 7th circuit ruled in their favor is because they believe that only SCOTUS can overturn the precedent.

I don't agree but I at least understand it. They seemed very pointed in the questions and analysis of Chicago.

That will boost my confidence. The legal team in the 2nd circuit & 9th circuit not quite as good from reading the oral arguments.