Posted on 02/20/2009 8:42:55 PM PST by neverdem
The always amazing Scotus blog earlier this week supplied a nifty update on post-Heller moves to expand Americans' Second Amendment rights in Illinois. Highlights on the story so far, and where it might be going:
three significant test cases on the scope of the Second Amendment — the “gun rights” Amendment — are moving along in the lower courts.....
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.....The Justices, however, did not then settle whether the Amendment applies to state and local governments, as well as the federal government and the District of Columbia.
The sequel cases tested handgun bans or controls in the cities of Chicago and Oak Park, Ill., a Chicago suburb....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. (His ruling in two of the cases is here; a separate ruling, applying the first, is here.)[Last two links are pdf links.]
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....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so that they applied to the states through the Fourteenth Amendment had not yet existed at the time), or that it is outdated and essentially overturned by modern Supreme Court precedent.
Two of the relevant suits come from the NRA; the third is from the Second Amendment Foundation, and that case is chronicled with links to relevant filings at the site Chicago Gun Case. And for all the relevant Heller background, see my new book Gun Control on Trial.
-bflr-
L
Ping for 2nd Amendment in courts
Hopefully the NRA won’t railroad the effort since they succeeded in getting the cases combined. Thank the Lord that they failed with that in DC.
They just better make sure ALL of the defendants have standing...
Mike
Renounce your Illinois citizenship.
I don’t have Illinois citizenship. It’s NY, so I’m looking to leave.
IIRC, stare decisis binds the District Court to follow 1982 Seventh Circuit ruling. Circuit courts can only review that everything was legitimately done in the District Court, IIRC. Only SCOTUS can do as it pleases, but even they can't hear new evidence.
It’s a state’s right argument versus a Fourteenth Amendment argument. It’s argued that the Constitution’s Bill of Rights only restrained the power of the Federal gov’t, a limited Federal gov’t, not the states.
There isn't any. Using Shadur's logic Mayor Daley could force the residents of Illinois could be forced to quarter Illinois National Guard troops in their homes because the 3rd Amendment doesn't apply to the State of Illinois.
Likewise Governor Quinn could feel free to boil criminals in oil because the 8th Amendment doesn't apply to the State of Illinois.
The argument is quite ridiculous.
L
More “incorporation” BS.
Thanks for the ping. This might get fairly interesting if we can keep the NRA from bolluxing everything up.
Let's use the 13th Amendment to challenge the stimulus bill.
Being forced to work to pay off a debt that someone else welched on, *is* involuntary servitude.
Cheers!
The left is good at twisting things. Like some liberals who argue that the First Amendment protects the "right" of perverts to oogle pornography while sitting next to your child at a public library (I am sure that is what the Founders had in mind) but the First Amendment does not protect political speech on radio or the Internet.
Clear as mud to a politician in a justices robe.
If it does not apply to people living in states, who does it apply to? If this is true, then nothing in our Constitution applys to the states.
If they wish to argue the case that the 2nd amendment only applies to the Federal Government then maybe someone should show them what the Illinois Constitution says:
Constitution of the State of Illinois
Article One
Bill of Rights
SECTION 22. RIGHT TO ARMS
Subject only to the police power, the right of the
individual citizen to keep and bear arms shall not be
infringed.
(Source: Illinois Constitution.)
Interesting, wonder what the word ‘infringed’ means. :)
Probably whatever they want it to mean.
JB
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