Seventh Circuit declines to apply Second Amendment to state regulations
Christian Ehret at 8:21 AM ET
[JURIST] The US Court of Appeals for the Seventh Circuit [official website] on Tuesday upheld [opinion, PDF] a ban on handguns in two Illinois municipalities. The panel of judges affirmed the district court ruling [opinion, PDF] that the incorporation of the Second Amendment [JURIST news archive] into the Bill of Rights as it is applied to the states is a question for the Supreme Court [official website] rather than a court of appeals. The bans, enacted by the Illinois municipalities of Chicago and Oak Park [ordinances, PDF], were challenged by the National Rifle Association (NRA) [advocacy website] on privileges and immunities grounds. As petitioners, the NRA contended that the Supreme Court's decision in the Slaughter-House Cases [opinion, PDF], which held that the privileges and immunities clause does not apply the entire Bill of Rights to the states, was wrongly decided. Additionally, the NRA argued that second amendment rights should be applied to the states through "selective incorporation," where portions of the bill of rights are selectively applied to the states by courts. The NRA maintained that the case is controlled by the Supreme Court decision in District of Columbia v. Heller [opinion, PDF], where the Court held that the second amendment entitles people to keep handguns at home for self-protection. The court rejected this argument, reasoning that Heller is not controlling law over this matter because it dealt specifically with laws promulgated under federal authority whereas the ordinances in question were enacted by local municipalities. The court addressed the incorporation of the Bill of Rights to the states and principles of federalism, saying:
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. 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 US Court of Appeals for the Second Circuit [official website] in January issued a similar ruling [opinion, PDF], in which Supreme Court nominee Sonia Sotomayor [WH profile] joined the panel, holding that existing Second Amendment precedent only applied to restrictions at the federal level.
Heller marked the first occasion that the Supreme Court directly addressed the Second Amendment since 1939's United States v. Miller [opinion text]. Since Heller was decided, challenges to firearms restrictions have become increasingly common. In April, the US Court of Appeals for the Ninth Circuit [official website] applied [opinion, PDF] the Second Amendment to its jurisdiction. The NRA asked the Seventh Circuit to follow the Ninth Circuit's ruling which held existing precedent as dated and obsolete. In March, a district court granted a preliminary injunction [JURIST report] against a federal rule that permits the possession of "concealed, loaded and operable" hand guns in national parks and wildlife refuges in accordance with state laws.
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