States and Munis Can Ban Guns, But the Feds Can't!

Wednesday, June 03, 2009

I know that we have had lengthy and interesting debates on gun rights in the past, so I will add a new wrinkle to the discussion...

Yesterday, the U.S. Court of Appeals for the Seventh Circuit (Chicago) ruled unanimously that the 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. It only applied to the federal government, which is why D.C. couldn't ban guns (they are a national territory and not a state). The decision yesterday was National Rifle Association of America v. City of Chicago, and it upheld a Chicago ordinance banning handguns and automatic weapons within city limits.

Here is the link to the article...

I think this is good news. I am sure Steves and others will disagree. I invite you to read the article and provide your thoughts. I will concede, though, that this is not close to over and I am sure the Supremes will want to weigh in to this one!


Smitty 8:26 AM  

A large part of me thinks that when SCOTUS made their decision, they meant for it to apply to municipalities and states.

However, that means that SCOTUS would have had to *miss* the fact that D.C. is neither of those.

But if D.C. is indeed a little weird island (all jokes aside...), what are the other "little islands" were the SCOTUS would apply?

In other words, I don't think SCOTUS meant to render a decision so narrow that it only applies to "little islands." I think it is supposed to be broader.

So my non-legal mind thinks SCOTUS will hear this if only to clarify their decision from earlier.

Andy 9:23 AM  

I would guess that it would apply to the Virgin Islands, Guam, and other territories.

I agree that they will probably take the case and clarify...and am curious to see how they clarify. Plus, they will have to clear up the difference in opinion from the California and Chicago circuits (referenced in the article later). But for now, this is the law of the land (unless stayed by SCOTUS).

B Mac 3:51 PM  

I'll be Steves for a minute...

The 7th Circuit was bound by the doctrine of selective incorporation. Until the Supreme Court declares affirmatively that an amendment applies to the states, the lower courts are not empowered to enforce them. The Supreme Court hasn't done so; ergo, the 7th circuit had no choice.

But Smitty, I don't think SCOTUS missed this. There's a damn good reason they took Heller and not some state or municipality-based offense. They did it to split the baby; they declared teh right an individual one, but did so in a manner that barely affects any current laws. It was basically a shot across the bow.

steves 6:48 AM  

I htink Smitty's alanlysis is correct. The Supreme Court wanted to take this slowly, as it is an issue that they hadn't really touched directly since the 1930's. By rendering a narrow ruling, they allowed other cases to work their way up and they could see what the major questions would be.

There have been several other cases working their way up through the system. Maloney v. Cuomo (Second Circuit docket 07-581) came to the same conclusion as the NRA Chicago case and relied on several cases from the 19th Century to say that the 2nd didn't apply to the States. Judge Sotomayor was part of the panel that issued that unsigned ruling, so we may see gun rights groups drwan into the nomination debate.

Another case came to a different conclusion. In April, the 9th Circuit said that the 2nd applies to State and local municipalities in Nordyke, et al. v. King (Circuit docket 07-15763). Not surprisingly, I agree with the 9th Circuit. The other Courts relied to some degree on cases that came out before any of the other selective incorporation cases. At present, all but a few provision s of the BOR apply to the States. The Supreme Court generally says that a fundamental right cannot be violated by State and local municipalities.

It is likely that these three cases will be combined and heard by the Supreme Court this summer. My hope is that the Heller decision is expanded to cover State action and that they come up with some kind of test or framwork to help Courts and Legislatures decide what laws are ok and what laws are not.

While I think there are good examples of the federal government overstepping it's Consitiutional powers, I don't believe that States and cities should be able to restrict people's fundamental rights. It is as simple as that.

Andy 9:03 AM  

Thanks, Steve. Process-wise, that is a great analysis.

Of course, I will continue to disagree with you that carrying a gun is a fundamental right...but that is what democracy is about. The ability to disagree without killing each other like a Somalian warlord would do!

I am not anti-gun (in fact, I enjoy target shooting), but I think that the community should be able to prohibit weapons if appropriate. And I don't think that having a gun is a fundamental right. But that is just me acting as a lawyer with no real legal experience!

B Mac 9:17 AM  

IMHO, I doubt the court will grant cert in the next few years. They'll let the circuits try to develop a consensus, and only if things get out of hand will they intervene.

If you want a REAL 2nd amendment debate, I offer you... nunchucks?

steves 3:16 PM  

BMac, I think this will move faster than a few years. Andy, what rights do you consider fundamental? Why not the right to bear arms?

Smitty 3:43 PM  

It has always been my understanding that the bill of rights are considered our "fundamental" rights.

Fundamentally, as an American, I can:

1 - pray or not, talk shit, paint lewd pictures on a crucifix, reaqd newspapers that grump about our government, and stand around, peacefully, with a bunch of my buddies holding signs.

2 - Buy, keep, store, occasionally fire and often clean guns of all sorts for no other reason than just because I can. I can also join or create a militia, and talk all sorts of shit about the government (see #1 above), just as long as I don't actually shoot at the government.

3 - not allow army pups, navy squids and airforce flyboy fighter jocks to stay in my house. Marines are welcome, until they drink too much of my beer.

4 - Keep the cops out of my house and out of my shit without a warrant.

5 - A trial in front of people who determine whether or not the state's bullshit evidence against me is indeed bullshit or not, or was obtained through bullshittery, and only once for the same crime, regardless of getting off the first time only to have new evidence like a severed head appear later. Without my knowledge. I have to be informed of my arrest, and The Man can't just take my shit because they think I am guilty. I can also go to a trial and not say a damn thing. I can also get questioned by the cops and keep my yap shut.

6 - I get a trial that I can turn into a media circus. I get to see the people who are wrongly accusing me so I can exact my revenge later. I can bring my own to say what a model citizen I am and that it's just unconscionable that I would get a sheep and a boyscout high on meth and try to touch them. I get a lawyer too, fresh out of law school where s/he studied international contract law, but here they are doing criminal work.

7 - A group of people gets to hear whether or not I owe somebody a lot of money.

8 - I can get bailed out of jail for a reasonable sum, and I never have to worry that my punishment won't fit my crime (like the death penalty for public urination).

9 - The constitution can't take away my rights that I retain otherwise.

10 - the state I live in can also pass laws that make my life miserable.

Those are my fundamental rights. On top of that, I can't be a slave, everybody gets protected equally so one people of one belief can't take rights away from another group because they don't act the same (gay marriage, anyone!), and we all get to vote...even chicks.

Anonymous,  3:56 PM  

"...even chicks."

Can't win them all.

B Mac 7:44 PM  

Smitty, it depends on how you frame the scope of those "fundamental rights".

Sodomy laws are a prime example. Did the framers create this country with the hope that people should be able to engage in personal relationships free from government interference? Absolutely.

Were they actively trying to make sure that two dudes should be able to to the hibbidy dibbidy? Seems like a closer question.

Did they intend that the government should play no role in legislating morality? Doubtful.

And so it is with the 2nd amendment. Can the government take away all guns from everyone for any reason? Probably not. Can it prevent Charles Manson from purchasing an M1A1 Abrams? Probably

Somewhere in between exists a line. But I have no idea where.

steves 6:31 AM  

I think the BOR is a good glimpse into what is considered fundamental. I also think that B Mac touches on some other issues that are derived from fundamental rights, though one could argue that the framers were comfortable with some level of legislating morality, as there were "moral" laws that existed at that time. That being said, I think that legislating morality, for the most part, is a bad idea.

Bob 7:51 AM  

Please explain to the less scholarly among us why would the first amendment apply to the states and munis, but not the second amendment?

Andy 11:08 AM  

Ah, fundamental rights. The things that one person thinks is a truth and another doesn't.

I agree that the BOR creates rights, but I don't know if they are "fundamental."

Do I have a right to say my thoughts (first ammt)? Yep. Can I yell in fire in a movie theater if that is what I am thinking? Nope.

Does the 2nd amendment allow for the banishment of all guns? Nope. Does it allow for a militia? Yep. Does it allow for any person to have a gun anywhere at any time? Nope. That is why states can pass laws creating gun-free zones (which Michigan has) and on CCW (which MI has although is now more flexible than it used to be, but a mentally ill person still can't have one). And in Michigan, we have home rule so the cities have flexibility to do what the state doesn't prohibit.

Fundamental is a term of art. Not a law. We are governed by laws. And court decisions.

As to Bob's question... interestingly enough that is in the Michigan constitution as well, I believe! And it isn't that the second ammt doesn't apply, it is that there is a legal interpretation on how far it applies. Just like not yelling fire in a movie theater or the state being able to limit who gets a CCW.

steves 11:56 AM  

Bob, Originally, none of the BOR applied to the States, just to the Federal government. Through the 14th Amendment, the Supreme Court has said that certain provisions of the BOR will apply to the States. The decided to take a piecemeal approach, rather than incorporate the entire BOR.

Andy, I would argue that the BOR creates no rights, but recognizes that some exist by or our being a free people. I agree that any rights are subject to limited restrictions, the right to bear arms included. I think we disagree on where to draw the line.

I would also argue that municipalities shouldn't have much say in the area of firearms. Michigan wisely inserted a preemption clause to prevent towns and cities from passing more restrictive rules. Unfortunately, this didn't prevent idiots in Ferndale and East Lansing from violating the law and wasting taxpayer money to fight a battle they deservedly lost.

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