After the US Supreme Court DC v. Heller decision last year, my dad (who is extremely pro-gun control) and I (I am pro-gun) argued about the possibility that a Federal District or Circuit court might buy the argument that a 2nd amendment individual right to bear arms (as defined by DC v. Heller) does not bind law enacted by state and local governments, but only the national government. Despite our strong disagreement on gun policies, we agreed on the dubious persuasiveness of the above anti-incorporation argument, because, according to federal case law, almost every other “right” in the bill of rights binds federal, state, and local law.
In the NRA v. Chicago decision this week, the 7th Circuit Court of Appeals, paneled by Chief Judge Easterbrook (appointed by Reagan) as well as Circuit Judges Bauer (appointed by Ford) and Posner (appointed by Reagan), found for the City of Chicago and Oak Park (who the NRA sued over their still in place hand gun bans post-Heller) that an individual right to bear arms binds only federal law, but not state and local law (so the bans can remain intact), on the condition that only the US Supreme Court can “incorporate” the 2nd amendment as a binding right on all US law.
The 7th Circuit’s overview of the case:
Before EASTERBROOK, Chief Judge, and BAUER and POSNER,
Circuit Judges.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 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).
Although I disagree with the policy implications of the NRA v. Chicago decision, its legal argument makes sense (In addition, Posner, who I would consider very libertarian on guns, affirmed an anti-gun rights policy, because that’s what he thinks case law requires at a Circuit level, which says something positive about the integrity of this decision.):
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 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.
The NRA has appealed the decision to the US Supreme Court and this will probably make it the first of many decisions that attempt to clarify DC v. Heller. Hopefully, the US Supreme Court takes the case and clearly incorporates the 2nd amendment as a binding right on all federal, state, and local laws in the US. While I agree with the 7th Circuit that their court could not properly incorporate the 2nd amendment individual right to bear arms (as defined by DC v. Heller) to bind all law in the US, the Supreme Court can incorporate it and should.
Your thoughts?
June 4, 2009 at 10:20 pm |
Very interesting. I’ll take a look at the opinion.
The restraints imposed by one laboratory of federalism trump a federal right in the bill of rights and keeps it, in essence, from applying to a state via the 14th Am. – an interesting take.
June 5, 2009 at 5:27 pm |
Until the US Supreme Court clearly incorporates the 2nd amendment to bind all US law, I am afraid this is the case. I hope they do incorporate it later this year.
June 5, 2009 at 8:50 am |
Doesn’t it seem odd that the protections of the Constitution, the highest law in the land, do not apply to the states. Talk about a slippery slope if ever there was one. Think about it. The state could decide that you have no protection from unlawful search an seizure. They just come into you house whenever they want, go through your things, plant evidence and then put you in prison. And while they’re at it, they make you testify against your self and don’t let you have a jury trial. They’ll keep doing this until they get a successful prosecution and you remain in jail forever, or get that nice little needle. No, this is a horrifying travesty of justice.
June 5, 2009 at 5:32 pm |
Punk,
That is what is illogical about this anti-incorporation argument, I think it’s a pretty lame argument to say that most other rights in the bill of rights are incorporated as binding all federal, state, and local law except for (because we don’t like guns, guns are bad, mkay) the 2nd amendment individual right to bear arms (as defined by DC v. Heller). Now, I think it’s fair to say that only the USSC can incorporate a right because of federalism issues (as the 7th Circuit decision says), but the USSC has every reason to clearly incorporate the individual right to bear arms when it gets the chance.