February 16, 2009

SCOTUSblog: Heller Sequels in the Works

Writing on SCOTUSblog, a website that reports on Supreme Court activities, Lyle Denniston said:

"On a pace that very likely will put them in the Supreme Court at its next term, three significant test cases on the scope of the Second Amendment — the “gun rights” Amendment — are moving along in the lower courts. Briefing on the core question of whether state and local governments must obey the Amendment — and thus allow private ownership of handguns, for example — will be completed in the Seventh Circuit Court by mid-March. Argument and a decision by summer appear likely.

The three cases were filed swiftly after the Supreme Court, late last June, declared for the first time that the “right to keep and bear arms” is a personal, individual right — at least to have a gun in one’s own home for self-defense (District of Columbia v. Heller, 07-290). The Justices, however, did not then settle whether the Amendment applies to state and local governments, as well as the federal government amd the District of Columbia.

The sequel cases tested handgun bans or controls in the cities of Chicago and Oak Park, Ill., a Chicago suburb. (A California case that also had been filed promptly has been settled.) The Illinois cases were narrowed to the core question of whether the Amendment applied to the states. Consolidated, the cases were decided Dec. 4 by Senior U.S. District Judge Milton I. Shadur of Chicago.

Judge Shadur ruled against the gun control challengers, concluding that he was bound by a 1982 Seventh Circuit ruling that the Second Amendment did not apply to the states. (The Circuit ruling was in Quilici v. Village of Morton Grove — a case that the Supreme Court refused to hear in 1983.)

“Our Court of Appeals,” Shadur wrote, “has squarely upheld the constitutionality of a ban on handguns a quarter century ago,” and did so by relying upon an 1886 Supreme Court precedent (Presser v. Illinois) to hold that the Amendment only applied to the national government.

The three cases moved on to the Seventh Circuit in separate appeals, but they have been consolidated there (dockets 08-4141, 08-4243, 08-4244). The National Rifle Association and other challenges to the Chicago and Oak Park gun laws filed their merits briefs on Jan. 28. The local governments’ briefs are due Feb. 27, with a final joint reply brief due March 13.

The briefs by the NRA and others seeking to curb state and local controls on guns are studied efforts to get around the Supreme Court’s 1886 Presser decision. They argue that the Presser ruling either did not decide the issue of applying the Second Amendment to the states (because the notion of “incorporating” the Bill of Rights so that they applied to the states through the Fourteenth Amendment had not yet existed at the time), or that it is outdated and essentially overturned by modern Supreme Court precedent.

The NRA makes the bolder argument on this point, suggesting that any specifically mentioned in the Bill of Rights necessarily applies to the states through the Fourteenth Amendment. But the other challengers contend that, at least the Second Amendment right to keep and bear arms has been incorporated to apply to the states. The two groups either rely on the Fourteenth Amendment’s Due Process Clause, or its Privileges and Immunities Clause, as the basis for the absorption of gun rights against state and local governments.

The two groups also make an argument that failure to extend gun rights to individuals, for their own self-defense and other personal uses of guns, discriminates against them when others are allowed to have guns (an Equal Protection argument).

(The NRA’s merits brief can be found as docket entry 9 in the Seventh Circuit’s file on 08-4241 (and 08-4243), and the other challengers’ brief is docket entry 11 in the Circuit file on 08-4244.)

Comments (7)

The 2nd amendment does not give us the right to bear arms, it acknowledges that pre-existing right and secures through the Constitution.

And finally, the 2nd amendment makes it so that this right can not be taken away lawfully when it states "shall not be infringed".

infringe |inˈfrinj|
verb [ trans. ]
actively break the terms of (a law, agreement, etc.) : making an unauthorized copy would infringe copyright.
• act so as to limit or undermine (something); encroach on : his legal rights were being infringed | [ intrans. ] I wouldn't infringe on his privacy.

Amendment II
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.

Posted by: FRED B | February 22, 2009 10:08 PM    Report this comment

The States have no legal right to restrict the carrying of arms:

The Question as to whether the 2nd applies to the states is clearly spelled out in Articles 4, section2 and Article 6, The Constitution and the laws of the United States are "the supreme Law of the Land" and over ride those of the state.

Article. IV.

Section. 2.

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Article. VI.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Posted by: FRED B | February 22, 2009 10:07 PM    Report this comment

Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

AMENDMENT XVII
Passed by Congress May 13, 1912. Ratified April 8, 1913.
Note: Article I, section 3, of the Constitution was modified by the 17th amendment.
The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

Posted by: FRED B | February 22, 2009 9:58 PM    Report this comment

Article. I.
Section. 2.
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment II
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.

Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Posted by: FRED B | February 22, 2009 9:57 PM    Report this comment

I am sick unto death by all this BS put on by the liberal anti-gunner panty-wastes and their attorney and judge cronies. I just wonder if there is not some way to Constitutionally prosecute these judges, cities, counties, states and their legislators for their actions in restricting or rendering null these rights.

This argument, that "the people" means the government, on the 2nd Amendment is ridiculous and a no brainer. "The people" is referenced nine times in the Constitution and it's amendments, seven times it shows that "the people" is separate from the government. This argument should never have held water in the first place.

Posted by: FRED B | February 22, 2009 9:56 PM    Report this comment

I was under the impression that the second amendment applied to all abled bodied citizens of this great Country. I'm quite sure "States" fall within the border of the Country.

Posted by: JWallace | February 18, 2009 11:09 PM    Report this comment

I hope and pray that the cases are decided in SCoTUS before Obama replaces any conservative retirees. I'd much rather live to a ripe old age without having to defend my gun rights with deadly force.

Posted by: Gaviota | February 16, 2009 9:14 PM    Report this comment

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