Federal Court Says States Can Regulate Guns

comments- discussion?
http://online.wsj.com/article/SB124398585843379259.html

By JESS BRAVIN

A federal appeals court in Chicago ruled today that the Second Amendment doesn't bar state or local governments from regulating guns, adopting the same position that Judge Sonia Sotomayor, President Barack Obama's nominee to the Supreme Court, did when faced with the same question earlier this year.

Last year, the U.S. Supreme Court cited the Second Amendment to strike down a handgun ban adopted in 1976 by the Washington, D.C., City Council. The court, by a 5-4 vote, found that the amendment protected from federal infringement an individual right to "keep and bear arms."

The decision applied only to the District of Columbia, a federal enclave that is not a state. It left open whether the amendment also limits the powers of state government.

A string of 19th century Supreme Court decisions limited application of the Bill of Rights to state governments. During the 20th century, the Supreme Court held that certain constitutional rights, but not the Second Amendment, could be enforced against the states.

Gun-rights groups challenged ordinances in Chicago and Oak Park, Ill., as unconstitutional in light of the Supreme Court's decision last year. A federal district judge rejected their arguments, a decision affirmed Tuesday by the Seventh U.S. Circuit Court of Appeals.

Writing for a three-judge panel, Judge Frank Easterbrook observed that an 1886 Supreme Court decision limited the Second Amendment to the federal government. While that decision might be a "fossil," the lower courts have no power to overrule a Supreme Court opinion even if they suspect the high court may be inclined to do so itself. It was "hard to predict" what the Supreme Court would do should it consider the question in future, Judge Easterbrook wrote.

Judge Easterbrook and the two other Seventh Circuit judges were all appointed by Republican presidents. Judge Easterbrook wrote that they agreed with an unsigned Second Circuit opinion that in January rejected a Second Amendment challenge to a New York state law barring possession of nunchuka sticks, a martial arts weapon. That panel, in New York, included Judge Sotomayor and two other judges appointed by President Bill Clinton.

In San Francisco, however, a Ninth Circuit panel earlier this year held that the Second Amendment applies to state governments, even as it upheld a local ordinance banning guns from county property. One judge was appointed by a Republican president, the other two by Democrats.

Were they to follow the Ninth Circuit's reasoning, Supreme Court "decisions could be circumvented with ease," Judge Easterbrook wrote. "They would bind only judges too dim-witted to come up with a novel argument."

The split among the circuits increases the likelihood that the Supreme Court will step in decide the Second Amendment's application to state weapons laws.

If confirmed to the Supreme Court, Judge Sotomayor would not be bound by prior high court decisions and could provide her own analysis of the Second Amendment's application

The split among the circuits increases the likelihood that the Supreme Court will step in decide the Second Amendment's application to state weapons laws.

This will be decided by SCOTUS likely next year. Sotomayor will replace Souter who likely will have voted against it so no change their.

My guess is it comes down to the same 5-4 split and 2nd applies equally to the states just like 1st, 3rd, 4th, and parts of 5th, 7th, 8th

The "reverse discrimination" issue will get some traction, but the problem is the blue or purple states with Democratic Senators in them that don't have a lot of minorities. Folks in those places aren't terribly worried about losing a job to affirmative action hiring, but they do value their guns.

If she's painted to look like a gun grabber, and doesn't effectively refute that, she provides a way for Democratic Senators from states with large rural populations to join with Repukes in opposing her. The "wise Latina" judge comment will be meaningless next to that. If Heller had been decided the other way, right now we would be seeing a sizable number of states looking to secede. The people in those places look at Heller the same way that we look at Roe vs. Wade.

Alan Gura, who handled the DC case, also presented the oral arguments in Chicago.

He has a web site on the Chicago case he posts details on, as well as transcripts and MP3 recording of the trial. If I can find it I'll post it here later today.

The judges were pretty much bound to follow the precedent in their circuit. That's why the decision only took a couple of days. No real deliberation was required. If you read the transcripts or listen to the MP3 recoding of the case, the judges were almost apologetic to Gura that they had to follow the original case precedent in their own circuit.

Now they have two circuits disagreeing on whether the 2nd amendment can be incorporated and apply to the states as well as the Federal government.

SCOTUS will probably grant certorari and hear the case next Fall and resolve the incorporation issue. It would be stunning if the 2nd amendment was found to be the only part of the BoR that does not apply to the states!

Here's the website.

http://www.chicagoguncase.com/

weak and unpersuasive. Let me see if I can find the quote.

Lets hope Chicago is weak and unpersuasive before SCOTUS.

It would be stunning if the 2nd amendment was found to be the only part of the BoR that does not apply to the states!

Indeed, especially since the second amendment mentions States specifically.

"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."

Fully Incorporated
1st*
3rd
4th
6th

* each clause of the 1st was incorporated explicitly in a seperate case except "redress of greivences" however multiple subsequent cases reference incorporation of the 1st implying the entire ammendment is incorporated.

Partially Incorporated
5th - clause on indictment by grand jury is not (very old case 1884) however most state constitutions explicitly protect this

8th - clause on excessive bail & fines is not incorporated. SCOTUS found that states can set bail & fines by state statute so bail can vary substantially from state to state.

Not Incorporated
7th - you have no right to jury trial in all civil matters.


The 9th & 10th not really applicable & no court precedent exists either way.

arbitration clauses, e.g. purchase cars, employment contracts, health care contracts.

Auto dealers lobbied congress and had a law passed making binding arbitration clauses in contracts between dealers and manufacturers illegal, Bush signed it.

What's good for auto dealers is not good for customers however because some states still allow binding arbitration in auto sale contracts.

In some states, Chamber of Commerce aggressively lobbies against all efforts to make binding arbitration contracts illegal.

My comments above are about pre-dispute binding arbitration contracts.

They have no problem with limiting the scope of the 14th Amendment since it suits them on so many other issues:

http://www.cbsnews.com/blogs/2009/06/02/courtwatch/entry5057610.shtml

Judge Sonia Sotomayor’s bid for Supreme Court confirmation got a major boost Tuesday from two unexpected sources. The 7th U.S. Circuit Court of Appeals—led by arch conservatives Richard Posner and Frank Easterbrook—declared in a 3-0 panel decision that the Second Amendment does not apply to state gun regulations, even in the wake of the big gun-rights victory at the Supreme Court last spring. It’s a strong legal position that is the same as the one Judge Sotomayor took when the same issue was presented to her and her 2nd U.S. Circuit Court of Appeals colleagues a few months back.

:applause: