Seventh Circuit Ruling Reveals Anti-Approach to Incorporation

[Bartholomew Roberts]

http://www.ca7.uscourts.gov/tmp/O01FG6VB.pdf

"One function of the Second Amendment is to prevent the national government from interfering with state militias. It does this be 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 14th Amendment was ratified in 1868 making that rather than 1793 the important year for deciding what rules must be applied to states.)"

I think that one paragraph pretty much sums up the best argument the antis will be able to make regarding incorporation of the Second Amendment. They first adopt the dissenting view that the individual right is subordinate to the militia, they then argue that states should be granted special deference on this basis (and there are some lovely paragraphs on the glories of federalism in the opinion - it is my fervent hope that they still have the same bite in them when it isn't guns being discussed). Finally when they look at the historical context for interpretation, they will try to use 1868 (Southern states writing restrictive gun laws to disarm newly freed blacks) instead of 1793.

All in all, I don't think it is a winning argument; but you are witnessing the retooling of the old collective rights argument for the antis "There is an individual right but it is only there to allow a state militia so the states can do whatever they want."

Additional insightful commentary from the Volokh Conspiracy here:
http://volokh.com/archives/archive_2...tml#1243963229

[maestro pistolero]

The link has changed. See here

[Tom Servo]

Correct link is now here (pdf file).

Frankly, this whole decision looks like something of a cop-out to me. Easterbrook makes it quite obvious that he knows it's headed for the Supreme Court. Notice that his argument follows the Cruikshank/Presser/Miller axis, claiming that the privileges & immunities clause doesn't incorporate the 2nd.

Of course it doesn't. The due process clause does, as it has with all other incorporated rights. That was the crux of Nordyke.

Easterbrook's a sharp guy. There's a reason he chose to ignore the due process clause. Notice that there's absolutely no mention of it.

The 7th Circuit knows this is a losing battle, and so they're passing the hot potato along as quickly as possible.

Funny side-note: they cite from Maloney and choose the 2nd Circuit's reasoning over Nordyke. If this ends up in front of Sotomayor, how does that work?

[maestro pistolero]

Federalism is an
older and more deeply rooted tradition than is a right to
carry any particular kind of weapon

More fundamental and deeply rooted than the right to protect one's own life and the life of his loved ones? That right predates civilization itself, Judge Easterbrook. How a government can acknowledge a right to self defense, but then deny the means to effect it, is beyond my ability to comprehend.

A bit of a side note: My automatic yahoo 2nd amendment news search that went eerily silent when the 9th incorporated, has flooded my inbox with notices that the appeals court upheld the gun ban in Chicago. It seems they were listening all along. Hmmm.

[Glenn E. Meyer]

Here's a summary from Bloomberg:

http://www.bloomberg.com/apps/news?p...fer=worldwide#

The basic point is that Heller won't automatically be seen as wiping out nasty gun laws in the bastions of antisentiment - esp. in the big cities in anti areas. Unless the SCOTUS does make it applicable - expect such fights everywhere.

[hogdogs]

So will a single ruling ever deem all the excessive gun control bans as unlawful?
Or will it always require a city by city challenge?
Brent

[Al Norris]

Listening to the orals (again) after reading the decision, the outcome was predetermined.

Judge Easterbrook, writes correctly, that the P&I clause argument is foreclosed. He completely ignores the Due Process clause arguments for the "glories of federalism," again ignoring the reasons behind the adoption of the 14th amendment. Namely, the abuse, by the States, of its own citizens.

What actually scared me was the assumption, by Easterbrook, that self-defense itself could be made unlawful, and in the minds of the panel, withstand a constitutional challenge.

Originally Posted by Judge Easterbrook

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.

The tortured and twisted use of Scalias reasoning to come to the conclusion that any Governmental body, within the U.S., could pervert the right of self-preservation into an unlawful act, just boggles my mind.

To discuss something like this in an open forum, as a private citizen, is one thing. For a sitting panel of Circuit Judges to state this in an opinion, even if in dicta, is unconscionable.

The logical expansion of this reasoning is staggering. I am livid. Outraged, is a word that does not come close to expressing my thoughts.

[hogdogs]

Al, Be sure to cut the nails into little bites and chew the glass 32 times per bite to be sure it doesn't get stuck when you swallow...
Tell us how you really feel...
WAIT... Don't do that... You'd have to ban yerself after...

Brent

[pnac]

Who'da thunk it?

Wait... didn't GOA say this would happen after Heller?

[Bartholomew Roberts]

GOA said that incorporation of the Second Amendment would get shot down in the Seventh Circuit Court of Appeals on a three-judge opinion after Heller? If so, you'll have to point me towards the Press Release because that is impressive prognostication. Otherwise you'll have to elaborate on the "this" GOA said would happen.

In any case, I don't think it was a shock to anyone that had been remotely following Heller that more court cases would be necessary to establish the extent of the protected right.

[maestro pistolero]

Originally Posted by Judge Easterbrook
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.

Frightening indeed. I can't wait for Scalia, and the rest to tear into that outrageous notion. I think there must be something in the ventilation system in Easterbrook's chambers. How can a judge who makes such a point of emphasizing deeply rooted legal traditions ignore self defense, perhaps the oldest and most fundamental tradition?

[hogdogs]

How can a judge who makes such a point of emphasizing deeply rooted legal traditions ignore self defense, perhaps the oldest and most fundamental tradition?

EASY!!! Now we no longer need the right to self defense since we have federal, state, county and even city police going every where we go and hangin out drinking my coffee in the morning and un-aged corn liquor at night! Who needs guns and self defense with all the paid professional peace officers?
Brent

[Chris2121]

I still worry about Kennedy on the SCOTUS, though. He's a wild card, in my eyes. Maybe the only reason he went along with Heller was simply because it only applied to D.C.?

I think we're all hoping SCOTUS takes up an incorporation case, but we also can't forget that if it should go the other way, state and local legislators will be pretty much unleashed when it comes to absurd restrictions.

[Al Norris]

When I got home from work, sitting in my in box was an NRA-ILA aert telling me that the NRA has filed for certiorari to the Supreme Court. The petition is here (thanks to Prof. Volokh).

On Alan Guras website, he says he will be filing for cert, shortly.

Originally Posted by Bartholomew Roberts

I don't think it was a shock to anyone that had been remotely following Heller that more court cases would be necessary to establish the extent of the protected right.

No, it's not surprising that more litigation would be needed after Heller. In the instant case, the panel rather telegraphed the outcome during orals.

When I saw your post, yesterday, I knew, in general, what it was going to say. There are not many cases decided at the appeals level, barely a week after orals.

I also note that Alan Gura is much more subdues about Eastbrooks dicta:

The dicta suggesting that the right to self-defense may be abrogated by statute, and that the exercise of fundamental individual rights can be curtailed at the state level as a nod to federalism, is particularly troubling.

Troubling. Indeed!

[Bartholomew Roberts]

Also troubling is the fact that Posner, a well-recognized conservative judge, signed on to the opinion. Though Posner is a conservative more in the traditional sense of the word, one who dislikes change, which would make his position more understandable.

However, between this opinion and his recent comments on the failure of free-market capitalism and the need for more regulation of same, I am wondering if Posner hasn't slipped a memory chip somewhere or is angling for a position as Justice. He would be a good political choice for an Obama administration looking to replace a conservative Justice. He won't incorporate Heller and has signalled he is OK with New Deal Pt. II; but has been cited approvingly by conservatives so many times in the past that they would have a hard time saying no to him.

Having said that, I don't worry about Kennedy. I thought his comments during Heller were even stronger than Scalia's. I think with the current make up of the court, we see another 5-4 squeaker on incorporation.

Edited to add: Actually, it would be more like 5-3 I think, since I imagine Sotomayor will be confirmed by then and I hope she would recuse herself.

[Al Norris]

I discussed my views of Posner, briefly, in this post from last November.

In part of what Judge Posner wrote in the referenced article, he says of Scalia's interpretative method, "Scalia's entire analysis rests on this interpretive method [original textual meaning], which denies the legitimacy of flexible interpretation designed to adapt the Constitution (so far as the text permits) to current conditions."

I would argue that such "flexibility" strips all meaning from the constitution, if one were to examine it in the light of todays word meanings. Since the English language is in flux (it changes over time), then the meaning of the constitution will also change and precedent cannot stand. Especially in light of changed meanings.

For all the supposed conservative views that Posner claims, here he is claiming the "Living Constitution" method of examination.

When one reads the decision, written by Judge Easterbrook, and contrasts the following from Posner's article, one might wonder who has plagiarized whom.

The text of the amendment, whether viewed alone or in light of the concerns that actuated its adoption, creates no right to the private possession of guns for hunting or other sport, or for the defense of person or property. It is doubtful that the amendment could even be thought to require that members of state militias be allowed to keep weapons in their homes, since that would reduce the militias' effectiveness. Suppose part of a state's militia was engaged in combat and needed additional weaponry. Would the militia's commander have to collect the weapons from the homes of militiamen who had not been mobilized, as opposed to obtaining them from a storage facility? Since the purpose of the Second Amendment, judging from its language and background, was to assure the effectiveness of state militias, an interpretation that undermined their effectiveness by preventing states from making efficient arrangements for the storage and distribution of military weapons would not make sense.

The bottom line being that not all of those on the right are our friends. Similarly, not all on the left are our enemies.

[Chris2121]

Assuming that SCOTUS takes the Chicago case and Sotomayor is confirmed, she would have to recuse herself. If Kennedy should turn to the dark side, what would happen in a 4-4 split?

[Bartholomew Roberts]

Sotomayor would only have to recuse herself if Maloney was combined with Chicago.

As for a 4-4 tie, in that case the decision of the lower court is upheld; but the case has no precedential value. It is effectively the same as if SCOTUS had denied cert. From a practical standpoint we would be hosed though because Sotomayor wouldn't have to recuse herself on the next case and we would lose 5-4. Likely the makeup of the Court isn't going to improve in the next 4 years and another case would almost surely make it to the Court before then.

[Jim March]

Sotomayor ONLY has to recuse herself (based on tradition alone, not law!) from hearing the version of this case coming out the 2nd circuit (the nunchucks case), not this one from the 7th or Nordyke from the 9th if it should get that far (unlikely).

So the whole thing is up to Kennedy!

(And on a 4/4 split, we lose - or rather, whatever came out of the lower court stands.)

[Al Norris]

For those following the Chicago gun-ban case, Alan Gura filed his cert petition on Tuesday, June, 09. You can download it here.

After reading both the NRA's cert petition and Alan Gura's cert petition, I highly favor the latter.

It is concise and to the point. It does not wander from its main thrust, that the Second Amendment is incorporated under the 14th's Due Process Clause; that the 7th circuit failed to follow the Supreme Courts suggestion (in Heller) that the lower courts perform the analysis on questions of fundamental rights; that this case presents a clear and immediate opportunity for the Court to instruct the lower courts; that this case also provides the correct vehicle to revisit the Slaughterhouse Cases and overturn the gutting of the P&I clause of the 14th amendment.

There are some clear gems of thinking included in the cert. Such as:

In a remarkable passage, the court below suggested that the right of self-defense is a mere construct of positive law that, if rescinded, can obviate the Second Amendment right to keep and bear arms. In other words, the Second Amendment secures a right that can be revoked by mere legislation. The court below thus suggested that the right of self-defense could be legislatively modified to deprive people of the Second Amendment right to possess a handgun.

Gura then goes on to describe how this flies in the face of the Courts decision in Heller and other decisions of the Supreme Court. Even to referencing the near-sacred Roe v Wade line of cases.

Brilliant line of reasoning!

[Bartholomew Roberts]

Thanks for sharing the link to the cert petition. I've read a lot of legal briefs and that is quite possibly one of the best briefs I have ever seen.

Gura's logic is relentless and inescapable for anybody who even makes a pretense of intellectual honesty.

I also like the way he framed the question. Instead of making this just an issue of whether the Courts should incorporate the Second Amendment under the Due Process Clause of the 14th Amendment, Gura turns it into an argument that the lower courts were bound by existing Supreme Court precedent to apply the due process incorporation test and refused to do so.

If nothing else, that brief is going to make hypocrisy on the Court abundantly clear for later generations.

Another plus of the brief is that Gura pretty clearly lays out where he is going from here for the next four Second Amendment cases. He has clearly given a lot of thought to this and is pursuing it in an extremely methodical manner.

[BillCA]

When one reads the decision, written by Judge Easterbrook, and contrasts the following from Posner's article, one might wonder who has plagiarized whom.

One has to wonder if either judge is appropriately qualified for the bench and/or has incompetent assistance. I'm not legal scholar or historian, but I can find plenty to argue over his statements.

The text of the amendment, whether viewed alone or in light of the concerns that actuated its adoption, creates no right to the private possession of guns for hunting or other sport, or for the defense of person or property. It is doubtful that the amendment could even be thought to require that members of state militias be allowed to keep weapons in their homes, since that would reduce the militias' effectiveness. Suppose part of a state's militia was engaged in combat and needed additional weaponry. Would the militia's commander have to collect the weapons from the homes of militiamen who had not been mobilized, as opposed to obtaining them from a storage facility? Since the purpose of the Second Amendment, judging from its language and background, was to assure the effectiveness of state militias, an interpretation that undermined their effectiveness by preventing states from making efficient arrangements for the storage and distribution of military weapons would not make sense.

Obviously Posner has forgotten that the Militia Act of 1792 specified that the arms of the militia were privately owned arms and not government purchased. The relevant portion of the act specifies...

That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints ...

The act does not authorize Congress to spend one thin dime on arming the militia or equipping the members with their weapons and accoutrement. So to answer Posner's question, if the militia required additional weaponry, the officer(s) would have to go door-to-door or ride to the nearest military fort to acquire them.

It probably makes no sense to a modern day judge living in a metropolitan city with burdensome taxes, a professionally hired and administered police force, plumbing, sewage, electricity, even cable-tv, plus some of the most corrupt bureaucrats money can buy. But it is what it is... because at one time people in this country were free.

[Tom Servo]

Hadn't known this:

The Fourteenth Amendment’s Senate sponsor,
Senator Jacob Howard, explained the Privileges or Immunities Clause’s incorporating scope:
To these privileges and immunities, whatever they may be – for they are not and cannot be fully defined in their entire extent and precise nature – to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech, (...) and the right to keep and to bear arms. . . . The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.

[maestro pistolero]

We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.

Scalia, writing for the majority in DC vs Heller.


Gives me the warm and fuzzies.

[RDak]

Me too maestro.

Scalia, and the majority, also stated handguns are in common use and fall under the umbrella of the 2nd Amendment. That gave me warm fuzzies also!

When I read that "common use" discussion, I simply fell off of my chair. That discussion severely limits what restrictions the government can place on firearms ownership IMHO.

How that conclusion on common use could be "reversed" in an incorporation case has me stumped, (i.e., unless the Justice was never for the private ownership of firearms in the first place or one of the basic holdings in Heller is to be "disregarded").

DC attempted to argue the very point Robert discussed in the OP. And the SCOTUS soundly rejected it based on the common use argument.