Skip to comments.Appeals Court Supports Local Gun Bans
Posted on 06/04/2009 11:46:59 AM PDT by WhiteCastle
WASHINGTON -- The U.S. appeals court in Chicago upheld the strict gun-control ordinances in Chicago and suburban Oak Park on Tuesday, setting the stage for a Supreme Court battle over whether the 2nd Amendment and its protection for gun owners extends to state and municipal laws.
In a 3-0 decision, the 7th Circuit judges said they were bound by legal precedents that held the 2nd Amendment applies only to federal laws.The latest ruling also may undercut a criticism leveled at Judge Sonia Sotomayor, President Obama's nominee to the Supreme Court. In January, she joined a three-judge ruling in New York that came to the same conclusion. Last week, gun rights advocates cited that decision and called her an "anti-gun radical."
(Excerpt) Read more at chicagobreakingnews.com ...
What foreign law was cited as a basis for this case?
undercut it? why? this should trumpet it.
Heller be damned. The Libs will send cases like this up to SCOTUS every year until Heller is reversed. The Libs know how to fight. Too bad conservatives don’t.
If anything it sets up the real battle in the SCOTUS, since Easterbrook’s majority opinion essentially says the states can ignore federal law whenever they want to “experiment.” The decision is intellectually weak and really an embarassment to the federal appellate courts... but this is Chicago.
So if the states can ignore the second ammendment none of the others should be legal either huh?
By extension shouldn't states be allowed to ignore any amendments they choose?
time to get this bumped to the SCOTUS.
In a way, I can understand what those federal appeals judges were saying. They were not saying that the 2nd amendment only applies to the federal government. They were saying that in fact it is not for them to decide what is and is not covered under the incorporation clause of the 14th amendment. It is for the Supreme Court to decide that. Sounds like non activists judges to me and I agree with that reasoning.
Sounds more or less right to me. Didn’t the ninth circus just say the 2nd was “incorporated?” I think the question is headed to the Supremes. Let it get there before Sonia, please.
SCOTUS in Presser v. Illinois: "... the states cannot, even laying the [second amendment] out of view, prohibit the people from keeping and bearing arms ..."
2nd Circuit, in Bach v Pataki: "Presser stands for the proposition that the right of the people to keep and bear arms, whatever else its nature, is a right only against the federal government, not against the states." cert. denied, 546 U.S. 1174 (2006) [SCOTUS declined the opportunity to correct]
Kind of like how Scalia, in Heller, said the Miller case supports the constitutionality of the 1934 NFA (for want of a factual finding (short barrel shotgun is useful for defense) the Miller case would have found the 1934 NFA to be unconstitutional)
They said that directly, and pointed at Presser as compelling that outcome.
I don’t recall “shall not be infringed” being followed by “except at the local level”.
Info for the discussion (and I fully support the individual right )---
Presser said : "Whether a State may not prohibit its citizens from keeping and bearing arms for other than militia purposes is a question that need not be considered, as the Illinois statute is aimed against the organizing , arming and drilling bodies of men as militia, ...."
Cruickshank said : "This is one of the amendments that has no other effect than to restrict the powers of the national government." (U.S. vs Cruickshank, 92 U.S. 542 (1875).
I once had the links to these case on another computer, but can't find them just now.
Also, seem to recall that the Supremes mentioned that since the defendents did not bring it up, Heller did not consider the states, only D. C.
The Supreme Court of the United States did decide in Heller that the 2nd Amendment is a private, not collective right. That ruling applies to all 50 (or 57) states.
Allowing states to more narrowly circumscribe federally guaranteed rights contradicts not only generally recognized notions of federalism (ex. we have standard heights for interstate overpasses and trailer rig sizes) but also the constitutional doctrine of `preemption’: where federal and state laws conflict, federal law preempts state law.
Again, the SCOTUS ruled in Heller that federal law is the 2nd Amendment is a private, not collective, right, as applied to the District of Columbia. There is no reason to dilute that right here by saying that a state can infringe on the right as interpreted by the highest court.
Moreover, states can give greater rights than federal law, but not less. The centralized government, power aggrandizers want to be able to use the above rationale to justify encroachments on individual liberty, but they can’t have it both ways, they can’t say federal law trumps state law only applies where it advances their agenda. (examples: just last November, Article 2, ``Requirements for the office of the presidency’—ignored; the 14th Amend. enabling/implementing the civil rights statutes following the war—enforced; the US Code regarding naturalization & immigration of aliens—ignored; etc.)
Of course that’s just stuff they teach in law schools, with the flip side being, as your post points out—try and explain it all to the subjects of the Peoples Republic of California; even if they vote, their courts may rule: `Nyet’.
In any event no government or court `gives’ us anything; if they are `wise latinas’ they simply recognize and respect God-given rights, i.e. the reason we have `Liberty’ on our coins. The natural law right of self-defense and defense of others trumps any artificial limiting constructs that governments (see: `Democrats’) would assert.
The NRA, God bless `em, is fighting the control freaks & gun grabbers as hard as ever. Let’s send them some more money.
Right. And Presser reiterated that. It takes a bit of legal thinking to understand the cases, but nothing that a non-lawyer couldn't understand. First, links to the two cases for your files:
The legal thinking is to first make note of the parties and issue in the case, because that is ALL that is decided. The issue in Cruikshank was a federal law that aimed to criminalize personal action that infringes rights. Non-government defendants had been charged with conspiring to violate the RKBA of other individuals. The Cruikshank Court said that a person whose RKBA have been infringed BY A PRIVATE ACTOR cannot look to the 2nd amendment for help. State law is there to vindicate wrongs committed by your fellow citizen in that regard.
The single phrase you picked out and isolated, "This is one of the amendments that has no other effect than to restrict the powers of the national government," is certainly in there, but there is much more context, and it is an error to presume that phrase represents the rule/law of the case.
Presser is good, because it takes this Cruikshank case, and uses it in light of a state law. The state law in Presser was a law requiring a parade permit, and Presser said the 2nd amendment creates a right to a parade, as long as the marchers bring guns. Silly argument, but that's what he argued. The Supreme Court, In Presser, said parade permitting is a legitimate police power, i.e., Presser, you don't have a RKBA case here.
I am absolutely AGAINST the notion of incorporation as a legal doctrine. It is opportunity for much continued legal mischief at the hands of the feds. That said, incorporation will happen before the feds admit that the lied about what Cruikshank/Presser really stand for. Even SCOTUS is hostile to RKBA, bigtime. But the deep-sixing of a good RKBA case, Miller, is a whole nother story.
Federal firearm law preempts state. See 1934 NFA, 1968 GCA and the convictions thereunder. A state cannot assert that its citizens may possess post-1968 select-fire weapons. The Federal restriction rules.
There is an individual RKBA, and states may not prohibit it - but that outcome does not depend on the presence or enforcement of the 2nd amendment directly against the states.
I'm a life member. Not that gives me any more or less right to criticize the NRA, but I lay that out FWIW.
The NRA SUCKS at teaching the public about 2nd amendment law. It accepts Circuit precedent as correct, and argues following "conventional wisdom" that accepts the errors Circuit Courts have made in reading and applying Miller and Presser.
The Miller case stands for the proposition that the feds may not prohibit short barrel shotguns, if short barrel shotguns have a defensive use. So, 2008, Heller comes along and the NRA says "Miller stands for the proposition that the feds MAY prohibit the public from short barrel shotguns." They argue that this fabrication is necessary to get the LYING Court to throw the bone of allowing citizens to have a handgun at home, provided they jump through whatever licensing hoops the locals erect. "We Won!" Yeah, ROTFL, you sure did.
The NRA is as much guilty for walking back the power of the people as the 2nd and 7th Circuit. Even if they have to argue BS to the Courts, they could STILL educate the people about how big a liar the Courts are being in regard to the Presser and Miller cases. Not a peep - they say the Heller Court "got it perfectly right."
They aren't fooling me. I read the cases.
Agree, but I suspect this is what the law clerks writing the opinions look at.
Good comments you made. I think some people have guns, but want gun control so others can not have a gun. Remember Rosie O'Donnel's body guard geting caught with a gun at the day care center.
Thanks for the links.
I don't like it much either. But I don't see how to avoid it.
Would you please comment on the language of the 2nd amendment? On its face with the passive voice and no specified agent it seems to me not necessarily to pertain only to the Feds.
The clerks don't sign the opinions.
SCALIA : We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.
District of Columbia v. Heller
US V. Miller : the Second Amendment guarantees the right to keep and bear [a weapon that] is any part of the ordinary military equipment or [which] use could contribute to the common defense
NRA: We Won! We Won! We Won!
I'll add that the people can demand Justices be impeached, but the clerks are beyond our reach.
It's repetitive or reiterative of a power the people said they would fight to retain, using force if necessary.
Over time, the people have been conditioned to see their rights as coming from the government. The tables are turned. Suck it up. Shut up and get back to work. Etc.
The Presser Court got it right. The RKBA doesn't depend on the 2nd amendment, and the states aren't free to prohibit keep and bear arms - if the states do, the people are justified in mounting an armed rebellion, if petition for redress proves ineffective.
"SCALIA : We therefore read Miller to say ...."
Good point. Miller was also "In the absence of any evidence ... " because there were no defendents or defense lawyers at the trial (as I understand it).
"NRA: We Won! We Won! We Won! "
Very approriate. I sometimes wonder why the NRA seems to hold back about pushing for gun rights. They seem to be doing a good bit in the states now.
Maybe there needs to be more disclosure about the clerks -- where they went to school and where they go to work after leaving the clerking job.
"Follow the money" is always a safe bet.
They claim the rights were lost incrementally, so need to regained the same way. What they really mean is that even though the people had the right to machine guns before, they shouldn't have the right to them any more. I.e., the feds are right to hem in the RKBA.
That's the excuse, and the real reasons (besides fund raising) for not exposing blatant bogus jurisprudence to their membership.
In the end, I think it doesn't make any difference. The public is, for the most part, a bunch of lazy, ignorant (I mean that in an endearing way), dependent, irresponsible (not my fault), and risk averse individuals. Even if the NRA told the public what a bunch of lying cheats and enablers the Courts have been, the people wouldn't act on the information.
That was in the back of my mind a little. Saw somewhere recently that Wayne LaPierre makes close to $1 million per year. That is a little much, if true.
I agree, the public for the most part doesn't care, but I have been surprised by the number of women here in North Georgia that have guns -- and carry them. And there is more discussion lately about guns and the need to have them.
I don't think that's an outrageous amount. My beef is that they are baby-stepping the public on the core power-dynamic between the governed and the politician, and they are helping the Courts bury the Courts own lies.
-- I agree, the public for the most part doesn't care, but I have been surprised by the number of women here in North Georgia that have guns -- and carry them. --
I think the public sort of cares, and I agree that guns for personal protection are a hot item. See too, AR-15's flying off the shelves. I'm confident that the people of Illinois are just as interested in keep and bear as your neighbors in North Georgia, but those folks don't care so much that they are storming the castle.
The gun grabbing powers are patient. This sort of paradigm shift takes a generation or three to complete. RKBA will soon be right to a gun at home, if the gun is on the approved list and you have a license. CCW at states discretion.
Interesting way of putting it -- had not thought about it in that sense, though I knew they often should have pushed the issue more.
May be worthwhile to bring up this point more often, to remind us.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.