Chicago Law Banning Handguns in City Upheld by Court

[charby]

http://www.bloomberg.com/apps/news?pid=20601087&sid=awIn1M4tWxi8&refer=worldwide

Chicago Law Banning Handguns in City Upheld by Court (Update3)
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By Andrew M. Harris

June 2 (Bloomberg) -- A Chicago ordinance banning handguns and automatic weapons within city limits was upheld by a U.S. Court of Appeals panel, which rejected a challenge by the National Rifle Association.

The unanimous three-judge panel ruled today that a U.S. Supreme Court decision last year, which recognized an individual right to bear arms under the U.S. Constitution’s Second Amendment, didn’t apply to states and municipalities.

“The Supreme Court has rebuffed requests to apply the second amendment to the states,” U.S. Circuit Judge Frank Easterbrook wrote, upholding lower court decisions last year to throw out suits against Chicago and its suburb of Oak Park, Illinois.

The Fairfax, Virginia-based NRA sued the municipalities in June 2008, one day after the U.S. Supreme Court’s decision in District of Columbia v. Heller struck down a hand-gun ban in the U.S. capital district encompassing Washington.

“We clearly disagree with the court’s conclusion,” NRA attorney William N. Howard, a partner in Chicago’s Freeborn & Peters LLP, said in a telephone interview. “The next step will be an appeal to the Supreme Court.”

“We recognize that this may not be the end of this litigation,” Jenny Hoyle, a spokeswoman for the city of Chicago’s law department said, acknowledging the likelihood the NRA would seek further review. “We’re certainly prepared for that if this happens. We’re prepared to aggressively defend our ordinance.”

Second Amendment

Adopted in 1791 as part of the Bill of Rights, the Second Amendment reads in its entirety: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

In Heller, the high court struck down Washington’s 32-year- old gun law, which barred most residents of the city from owning handguns and required that all legal firearms be kept unloaded and either disassembled or under trigger lock. Six residents had challenged the law, saying they wanted firearms available in their homes for self-defense.

“Heller dealt with a law enacted under the authority of the national government,” Easterbrook wrote, “while Chicago and Oak Park are subordinate bodies of a state.”

Chicago’s law took effect in 1982, Hoyle said. While it allows ownership of long guns such as rifles, they must be registered annually with the city’s police department. Concealed weapons, semi-automatic and automatic weapons are not permitted.

Some exemptions apply to members of the military and law enforcement agencies.

Following Precedent

Chicago U.S. District Judge Milton Shadur on Dec. 4 rejected the NRA’s request that he apply the Heller ruling to the Chicago and Oak Park laws, stating he was bound to follow a 1982 appeals court ruling upholding a ban by the Illinois village of Morton Grove.

That decision came from the U.S. Court of Appeals in Chicago, the same body that issued today’s opinion. The 15 judges of the Seventh Circuit hear appeals from the federal courts of Illinois, Indiana and Wisconsin.

Easterbrook, joined by Circuit Court Judges Richard Posner and William Bauer, said they, too, were bound to follow the precedent of a higher court, the U.S. Supreme Court, in its ruling on the Second Amendment not applying to states.

An appellate court departure from high court precedent “undermines the uniformity of national law,” Easterbrook wrote.

The judges rendered their ruling one week after hearing arguments.

Applicable Law

A San Francisco-based federal appeals court, with jurisdiction over cases from California, Oregon, Washington and six other Western U.S. states, in April ruled the Second Amendment can be read as applicable to states and counties.

Still, the U.S. 9th Circuit Court of Appeals’ decision in Nordyke v. King allowed to stand an Alameda County, California regulation that outlaws gun possession on county property.

Howard, the NRA’s lawyer, cited the Nordyke ruling as one of the reasons for his client’s challenge to the Chicago court outcome.

“This thing is headed for the Supreme Court,” University of Chicago Constitutional Law Professor Richard Epstein said in a phone interview.

“This is a question where you cannot run a split administration and there’s no way the circuits can resolve this amongst themselves,” he said.

The 7th Circuit case is National Rifle Association of America v. City of Chicago, 08-4241, U.S. Court of Appeals for the Seventh Circuit (Chicago). The 9th Circuit case is Nordyke v. King, 07-15763, in the U.S. Court of Appeals for the Ninth Circuit (San Francisco).

To contact the reporter on this story: Andrew M. Harris at the federal court in Chicago at aharris16@bloomberg.net.

I find this interesting that Nordyke ruling was one way and the NRA ruling was another. I hope that SCOTUS will hear the NRA case.

[Monkeyleg]

Sounds like this is make-or-break time for the Second.

[vaskidmark]

SCOTUS now has reason to hear the Chicago case as there is discrepancy in rulings between the various Circuits.  This is in reality the primary purpose of SCOTUS - to establish uniformity between the Circuits.

It is the Constitutional issue, rather than the specific case, that usually directs SCOTUS in choosing cases to hear.

In the past few days several of the "conservative" talking heads have been making noise that Sotamayor may not be as radical/liberal as she has initially been painted, based on her supposed orientation on "the right to life."  Rush said today (6/2/09) that if he could get verification of her stand in favor of "the right to life" he would switch his opinion against to in favor of her confirmation.

This bothers me, as Sotamayor has gone on record against incorporation of 2A.  It is not the only issue on my horizon, but it has grown in position over the last 9 months or so.

stay safe.

skidmark

[Jocassee]

This bothers me, as Sotamayor has gone on record against incorporation of 2A.  It is not the only issue on my horizon, but it has grown in position over the last 9 months or so.

skidmark

I agree with you about 90%. On the Rush angle, while he is on record many times supporting the 2A to its fullest extent--i.e. making Tyranny an endangered species--he is looking at the overall picture, as am I.

We are going to get a liberal justice. I, for one, would LOVE to see an anti-Roe Justice on the SCOTUS, even at the cost--and it pains me to say it--of a pro 2A justice, which, lets face it, is EXTREMELY unlikely,

[longeyes]

Sotomayor is going to go against Roe?  She would never have gotten this far if she were.

If the 2A isn't fully incorporated, the whole Bill of Rights becomes--just my opinion--a cruel joke.

[MicroBalrog]

This bothers me, as Sotamayor has gone on record against incorporation of 2A.  It is not the only issue on my horizon, but it has grown in position over the last 9 months or so.

Sotomayor is a liberal justice replacing another liberal justice.

An anti-Roe liberal justice appointed by Obama... oh God, the schadenfreude .: D

McCain or Bush would have never DARED to appoint an anti-Roe justice.

[vaskidmark]

Sotomayor is going to go against Roe?  She would never have gotten this far if she were.

If the 2A isn't fully incorporated, the whole Bill of Rights becomes--just my opinion--a cruel joke.

Were you aware that SCOTUS says that 3A & 7A are not incorporated as to the states via the 14th Amendment?  There are others beyond the BOR, but we were not talking about them.

Joke?  No.  Original intent? Yes.  The validity and usefullness of 14A or the stupidity of SCOTUS justices in understanding 14A?  Questionable on both counts.

stay safe.

skidmark

[MicroBalrog]

Joke?  No.  Original intent? Yes

Doubtful, and doubtful whether this will apply to 2A, as 2A considerations were part of why the 14th was adopted in the first place.

[buzz_knox]

Doubtful, and doubtful whether this will apply to 2A, as 2A considerations were part of why the 14th was adopted in the first place.

Most people don't know that insuring freed slaves had access to firearms for self-defense (including defense from local authorities) was one of the driving reasons behind adoption of the 14th Amendment

[MicroBalrog]

I recommend reading Akhil Reed Amar's The Bill of Rights: Creation and Reconstruction. It's one of the best books about the origins of the Bill of Rights and its evolving role in American society. It was interesting for me to find out that though the BoR was not initially explicitly incorporated, the judges often invoked it in their decisions on state law, to show the BoR as an evidence of common law custom and use it to strike down local laws on that basis.

[longeyes]

I'm aware that the 2A isn't unique in this regard.  That doesn't change my view that without incorporation, without creating a "floor" through the BOR, we are dancing with a phantom.

[grey54956]

So if the 2A doesn't apply to States and Municipalities, these entities would be governed by their respective State Constitutions.

While this would suck for Illinois, seeing as how RKBA would be subject to police powers:

SECTION 22. RIGHT TO ARMS
    Subject only to the police power, the right of the
individual citizen to keep and bear arms shall not be
infringed.

But would be alright in Indiana:

Section 32. The people shall have a right to bear arms, for the defense of themselves and the State.

Section 33. The military shall be kept in strict subordination to the civil power.

I attached Section 33 because I thought it pertinent.  Someone may claim that Section 32 only applies to blackpowder arms, flintlocks, caplock, etc...  but if this is the case, then how the heck could the military be kept in strict subordination to the civil power, or to defend themselves in the event that the military decides to launch a coup.  I am thinking that it could be argued that the Indiana Constitution guarantees the right to keep a tank, battleship, field cannon, or any other type of arm.

[Modifiedbrowning]

Rush said today (6/2/09) that if he could get verification of her stand in favor of "the right to life" he would switch his opinion against to in favor of her confirmation.

Nope. He said he would consider supporting her nomination if she supported pro-life in a legal sense.

[T.O.M.]

I have to agree, if SCOTUS takes up this case, it will be the landmark decision on individual rights under 2A.  If they rule that it's a home rule issue, meanig the 14th doesn't impose 2A on the individual states, but merely restricts federal laws, it could well be the beginning of the end.  If they rule the other way, as they have for 1A, 4A, 5A, 6A, then it is a new beginning.

If I was on the bench, (the SCOTUS bench, not my little one here in Ohio), I would argue that the intent of the Bill of Rights was to protect the individual against the State, meaning the individual against all government, whether it be local, state, or feredal.  While the "State's Rights" argument does have some historical appeal, in that the Bill of Rights was drafted to encourage the state's rights people to ratify the Constitution, I cannot see how the 14th can apply to only select few atricles of the BOR, and not all.   But that's just the opinion of a lowly magistrate in Ohio, where the State Constitution also protects the right to keep and bear arms.  Art. 1, Sec. 4.

[zahc]

I feel the same way. I can see a court case to decide whether the 14th applies the the bill of rights or not, but I don't see how it can apply to one ammendment and not another.

[Scout26]

This was fully expected here in Chicago.  http://www.chicagoguncase.com/ 

No matter which way the 7th Circuit ruled, this case was going to the Supreme's.   

With Nordyke in the 9th and now McDonald in the 7th, there's a split amongst the circuits.   The Supreme's have to grant cert or the question about incorporation mess will get much bigger.

[charby]

This was fully expected here in Chicago.  http://www.chicagoguncase.com/ 

No matter which way the 7th Circuit ruled, this case was going to the Supreme's.   

With Nordyke in the 9th and now McDonald in the 7th, there's a split amongst the circuits.   The Supreme's have to grant cert or the question about incorporation mess will get much bigger.

Maybe that was the plan all along for the NRA?

[zahc]

No matter which way the 7th Circuit ruled, this case was going to the Supreme's.   

Sorry, why is this? I if the 7th had ruled that the second was incorporated, there would be no split amongst the circuits, and then why would it go to the SCOTUS?

[Scout26]

Sorry, why is this? I if the 7th had ruled that the second was incorporated, there would be no split amongst the circuits, and then why would it go to the SCOTUS?

Because Da Mayor (Daley) would have appealed to keep his beloved gun ban to the USSC.  That's why the this didn't take very long from Oral Arguments which were on 26 May to the the decision came down a 2 June.  That's light speed in court time.   Smart money says the opinions were written before the oral arguements.

If you listen to the oral arguements,    http://www.ca7.uscourts.gov/fdocs/docs.fwx?caseno=08-4241&submit=showdkt    the judges basically tell Gura "Save your breath for the Supreme's"

[longeyes]

If there is no general incorporation of the Bill of Rights and no agreement on quintessential political and philosophical values, then we aren't really talking about "states' rights" but what are really de facto separate mini-nations bound by economic convenience. 

Maybe that's just what the way things are going in a country that seems more torn over more things by the day.

[geronimotwo]

Sounds like this is make-or-break time for the Second.

if this continues to the supreme court, i hope that this case was chosen as carefully as heller seemed to be.

i have always felt that the constitution was designed to protect the rights of the people, with an umbrella effect, from all forms of government (city state etc). i find it interesting that it could be interpreted to only effect federal law. are there any supreme court case precedents that would uphold, or deny this line of thought?

[T.O.M.]

There is quite the historical precedent.  At the time of Armeica's origins, there was a great fear of a centralized national government.  Hence, the Confederacy of States which existed before the United States of America was truly born in 1787.  Many people feared a large centralized government would do little to change the situation from that which they had escaped.  So, in the opinion of many constitutional scholars, the actual Bill of RIghts was written to protect the rights of the individual states against a central federal government.  However, when the 14th was put in place, it extended many of the rights to the individual (4A, 5A, 6A) due to some of the travesties taking place in the criminal justice system where state law and state constitutions did not offer the protections to the individuals.  The trend at the time was to impose federal protections on the states.  this continued to be the trend through the civil rights era, the Miranda decision, etc.  Now, it looks lik the pendulum is trying to swing back the other way, with respect to 2A at least, saying that the Bill of Rights was intended only to limit the Feds, and not to impose limits on states.

If we think this through to the end, and they rule that 2A is a restriction on the Feds, wouldn't a Federal AWB be void?  Maybe even the Machine Gun Ban?  Wouldn't it all fall back to a state issue?  If so, watch the fun as some of the anti states impose complete bans, and friendly states set it all free.

[lupinus]

If we think this through to the end, and they rule that 2A is a restriction on the Feds, wouldn't a Federal AWB be void?  Maybe even the Machine Gun Ban?  Wouldn't it all fall back to a state issue?  If so, watch the fun as some of the anti states impose complete bans, and friendly states set it all free.

While I'd much prefer a ruling that states individuals have this right, I would actually take the above over other possible rulings. 

Many states are pro gun and have little if anything above and beyond the fed.gov restrictions.  California or New Jersey politicians not having an ounce of say in my gun rights here in SC would be better then a lot of potential alternatives.

[Scout26]

if this continues to the supreme court, i hope that this case was chosen as carefully as heller seemed to be.

i have always felt that the constitution was designed to protect the rights of the people, with an umbrella effect, from all forms of government (city state etc). i find it interesting that it could be interpreted to only effect federal law. are there any supreme court case precedents that would uphold, or deny this line of thought?

Yep, it was.  While Heller was working it's way to the USSC, Gurs et al, were in Chicago recruiting McDonald et al for the this case.

[T.O.M.]

I was in the car driving for about 4 hours this weekend.  My mother's fighting cancer, and it was time for a visit.  Anyways, that leaves a lot of time to think.  At one point, I passed a sign in a construction zone which said something about the work being done thanks to federal grants.  This got me thinking, and not in a good way.  Let's say SCOTUS rules that 2A is a restriction on Federal action, and not state laws.  As such, no federal AWB, handgun bans, etc.  Good news, right?  As long as you live in a gun friendly state.

That is, until the anti's in Congress start to link federal funding to firearms laws.  Want money for that highway?  Better enact an AWB.  Want money for police officers?  Better ban handguns.  Want federal money for any project, better enact more gun control.  And, since it involves doling out money, and not directly imposing the bans and restrictions, it would fly through the courts with no problems.

Better hope 2A is seen as invidual, folks...