New 2d Amendment case on the way
on Jun 2, 2009 at 5:45 pm
The National Rifle Association, rebuffed Tuesday in a new attempt to get the Second Amendment applied to state and local government, will move on now to test that issue in the Supreme Court, attorneys involved said Tuesday afternoon. A three-judge panel of the Seventh Circuit Court ruled that it has no authority to second-guess old Supreme Court precedents that limited the Amendment to a restriction on federal laws, not those enacted at state, county or city levels.
The Circuit Court took only one week after hearing oral argument to decide cases that the NRA has been pursuing to expand the individual right to have a gun for self-defense in one’s home — a Second Amendment right that the Supreme Court recognized for the first time in its ruling last June in District of Columbia v. Heller (07-290).
The lead case before the Circuit Court was National Rifle Association, et al., v. City of Chicago (Circuit docket 08-4241). The new decision, written by Judge Frank H. Easterbrook, can be downloaded here. The opinion was joined by Circuit Judge Richard A. Posner and Senior Circuit Judge William J. Bauer.
The case is the second on the issue now bound for the Supreme Court. Another case, from the Second Circuit, is due to be filed at the Court late this month (Maloney v. Rice, Circuit docket 07-581). Those rulings reached the same result: Supreme Court precedents are binding on lower courts, and those precedents limit the Amendment to the federal government or federal enactments (like those for the District of Columbia, the federal city).
Because the Second Circuit ruling was written by a panel that included Judge Sonia Sotomayor, the nominee to the Supreme Court. If she is confirmed, she presumably would not participate in any review by the Justices of the Maloney case. However, she would not have to take herself out of review of the Seventh Circuit ruling in the NRA cases.
The scope of the Second Amendment appears now to have a good chance of being reviewed by the Justices, because there is a direct conflict on it among the Circuit Courts. The Ninth Circuit Court has ruled that the Second Amendment also applies to state, county and city government (Nordyke v. King, Circuit docket 07-15763). That case is awaiting a vote on whether the Ninth Circuit will rehear it en banc.
In the Seventh Circuit’s new ruling, it declared that “the Supreme Court has rebuffed requests to apply the Second Amendment to the states.” It cited the 1876 decision in U.S. v. Cruikshank, the 1886 decision in Presser v. Illinois, and the 1894 decision in Miller v. Texas.
The Circuit Court panel commented that the Ninth Circuit in the Nordyke case had said those precedents “may be bypassed as fossils.” But, in Supreme Court rulings that “no one thinks fossilized,” the panel said, the Justices have told lower court judges they most follow the highest court’s precedents even if the reasoning of those cases may have been undermined later.
Moreover, the panel said, the Supreme Court in its Heller decision had said explicitly in a footnote that the old precedents meant that “the Second Amendment applies only to the Federal Government.” That comment, the Circuit judges said, “does not license the inferior courts to go their own ways; it just notes that [those precedents are] open to reexamination by the Justices themselves when the time comes.”
Although not second-guessing the still-binding effect of those old rulings, the Circuit Court did cast some doubt upon the argument that the Second Amendment right to have a gun for personal self-defense should be applied to all government levels because the Amendment protects a long-established right.
Other parts of the Bill of Rights similarly protect long-established rights, and they have not been applied to the states by the Supreme Court, the panel noted. It cited such rights as to have a jury trial in civil cases, the right to be charged criminally by a grand jury, and the right not to have excessive bail imposed.
It also questioned whether the Second Amendment ought to be interpreted as undermining state authority to decide whether one may act in self-defense.
The NRA has the option of asking the full Seventh Circuit to reconsider the case en banc. But the full Circuit Court on May 6 turned down a plea for en banc review ahead of the panel’s consideration, so attorneys involved will make their next step a petition to the Supreme Court.
It appears, however, that none of the new cases on the Second Amendment will be ready for the Justices to consider until they return for a new Term in October, following the summer recess.
(NOTE: Thanks to How Appealing blog and to the Volokh Conspiracy blog for tips to the Circuit Court’s ruling Tuesday.)
