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.
Alt Teufel,
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:
Presser v. Illinois, 116 U.S. 252 (1886)
US v Cruikshank, 92 U.S. 542
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.
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