Legal News

What the Heller? 7th Cir. Joins 2d in Limiting Reach of Gun-Control Case

By Ashby Jones

Remember the Heller decision from last June? In that case, the Supreme Court, in a 5-4 majority, affirmed the D.C. Circuit's ruling that the District of Columbia's ban on handguns violated the Second Amendment.

At the time, the ruling was hailed as a landmark. And indeed it still is. But a little hiccup that garnered scant attention at the time the ruling came down was whether the ruling would apply to the states — a potentially significant barrier to those looking to extend Heller’s reach throughout the land.

And indeed, so far, this principle of federalism has put a crimp on the Heller decision. In perhaps the most striking example yet, the Seventh Circuit in Chicago on Tuesday ruled that the Second Amendment doesn’t bar state or local governments from regulating guns. In so ruling, the Circuit adopted the same position that Judge Sonia Sotomayor, President Barack Obama’s nominee to the Supreme Court, did when faced with the same question earlier this year. Click here for the report from the WSJ’s Jess Bravin; here for a report from the WaPo; here for the opinion.

According to Bravin, the main hinderance to the Heller’s ruling applying from sea to shining sea is a string of 19th century Supreme Court decisions that limited application of the Bill of Rights to state governments. During the 20th century, the Supreme Court held that certain constitutional rights, but not the Second Amendment, could be enforced against the states.

Gun-rights groups challenged ordinances in Chicago and Oak Park, Ill., as unconstitutional in light of the Supreme Court’s decision last year. A federal district judge rejected their arguments, a decision affirmed Tuesday by the Seventh U.S. Circuit Court of Appeals.

The Seventh Circuit opinion was notable partly because of who sat on the panel — conservative heavyweights Richard Posner and Frank Easterbrook (pictured), along with a third Republican-appointed judge. Writing for the panel, Judge Easterbrook observed that an 1886 Supreme Court decision limited the Second Amendment to the federal government. While that decision might be a “fossil,” the lower courts have no power to overrule a Supreme Court opinion even if they suspect the high court may be inclined to do so itself. It was “hard to predict” what the Supreme Court would do should it consider the question in future, Judge Easterbrook wrote.

Also of note: Judge Easterbrook wrote that the judges agreed with an unsigned Second Circuit opinion that in January rejected a Second Amendment challenge to a New York state law barring possession of nunchuka sticks, a martial arts weapon. That panel, in New York, included Judge Sotomayor — President Obama’s current Supreme Court nominee — and two other judges appointed by President Bill Clinton.

Sotomayor was criticized for the ruling by gun-adovcates. “Sotomayor, a politically correct lover of centralized government power (as long as she is part of the power elite), immediately went into counter-attack mode against the Heller decision,” said a statement by the Gun Owners of America, shortly after the ruling in Maloney v. Cuomo.

Full post as published by Law Blog - WSJ.com on June 03, 2009 (boomark / email).