Seventh Circuit: The Second Amendment Does Not Apply Against the States

Damon W. Root | June 2, 2009

The Seventh Circuit Court of Appeals issued its opinion today in National Rifle Association v. Chicago (formerly McDonald v. Chicago), holding that the Second Amendment offers no protection against the restrictive gun control laws of Chicago and Oak Park, Illinois. As I noted last week, the Second Circuit—including Judge Sonia Sotomayor—reached the same conclusion about a New York law back in January, while the Ninth Circuit, in April's Nordyke v. King, held that the Second Amendment does apply against state and local governments. This split among the circuits means the Supreme Court will almost certainly take up the issue. Here's why the Court should rule that the amendment does apply to the states.

Comments

proud libitard|6.2.09 @ 2:51PM|#

So, am I correct in understanding that it's NOT ok for the feds to ban my guns but the states can, if they wanted? WTF?

|6.2.09 @ 2:54PM|#

This split among the circuits means the Supreme Court will almost certainly take up the issue.

This also means that the circuit judges are incapable of reading plain English - the Amendment clearly states that the people's right to bear arms cannot be abridged. Period.

Warty|6.2.09 @ 2:56PM|#

Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon. How arguments of this kind will affect proposals to incorporate" the second amendment are for the Justices rather than a court of appeals.

It sounds like the court held that they're not qualified to decide this, and opted to send it up to SCOTUS.

I do love, however, how federalism is invoked to justify taking away individual rights.

The Angry Optimist|6.2.09 @ 3:02PM|#

Given that most major aspects of the Bill of Rights have been held to be incorporated against the states, it seems almost silly now to include a major right (the 2nd) along with the few and relatively minor rights in the BoR that are not incorporated. Especially given the language of the 2nd.

creech|6.2.09 @ 3:08PM|#

And how do pro-choice advocates reconcile the 2nd amendment not applying to city or state laws with Roe v. Wade?

Shannon Love|6.2.09 @ 3:12PM|#

So, is there a scorecard or something that we can use to tell which parts of the Bill of Rights apply to all levels of government and which apply just to the Federal government?

For example, are the rights secured by the first amendment only secured in regard to the Federal Government? Can state governments restrict freedom of the press, the right of assembly and the right to petition for grievances. Can state government create official established churches?

No one would argue that the first amendment does not apply to all levels of government, so how can anyone argue that for some magical reason, the 2nd amendment doesn't apply as well?

Jordan|6.2.09 @ 3:15PM|#

So, the 2nd Amendment is toast then. It was fun while it lasted. So does the government actually respect any Amendments other than the 1st at this point?

Jordan|6.2.09 @ 3:16PM|#

Wait, I forgot about the 3rd Amendment.

Mike T|6.2.09 @ 3:21PM|#

Given that most major aspects of the Bill of Rights have been held to be incorporated against the states, it seems almost silly now to include a major right (the 2nd) along with the few and relatively minor rights in the BoR that are not incorporated. Especially given the language of the 2nd.

It may be silly, but it's entirely in keeping with the way that judges, lawyers and the law work. They just make stuff up as they go, like "this right is in the 14th amendment... but that one isn't!"

If anyone disagrees with me that the legal profession doesn't largely just make up stuff as they go along, then answer this:

Why is it that the first amendment is incorporate, but the second amendment isn't? The first amendment specifically references Congress. *Looks around at all 50 states*. Yeah, I don't see a whole 1 Congress.

Now, I'm glad that the first amendment is incorporated, but it's pure sophistic rubbish for it to be incorporated, but not the second, since the second amendment's wording practically SCREAMS inclusion in the 14th amendment compared to the wording of the first.

Xeones|6.2.09 @ 3:21PM|#

So does the government actually respect any Amendments other than the 1st at this point?

The government respects the 1st Amendment?

Jordan|6.2.09 @ 3:23PM|#

Yeah, not really.

proud libitard|6.2.09 @ 3:25PM|#

Doesn't the 10th pretty much say that it does apply to the states?

C'mon, where's our resident Constitutional lawyer to help iron this shit out?!?

IceTrey|6.2.09 @ 3:34PM|#

I wonder the same thing. If the 2nd doesn't apply to the states then why should the 1st, 3rd, etc.. How about the 13th? What about the 17th? Yay, no more popularly elected senators!

I guess Article 1 section 10 doesn't apply either.

Syd|6.2.09 @ 3:36PM|#

The government respects the Third as well.

About the only argument I can see against incorportation is the militia clause. Since the states established the militias, they have a stake her the federal government doesn't.

On the the other hand, the 14th Amendment supersedes the original wording, and the intention of the drafters of the 14th Amendment was to incorporate rights like the second.

|6.2.09 @ 3:40PM|#

"Doesn't the 10th pretty much say that it does apply to the states?"

No it doesn't. Before the 14th Amendment none of the Bill of Rights applied to the actions by State governments. The framers were worried about a central government. The Constitution was a agreement among the states. It limited the power of the Federal Government. It left the states to their own devices. The 14th was really the first substantive amendment aimed at restricting state govnerments. Before that the only thing in the whole document aimed at the states was the requirement that the all have democratic governments. So here comes the 14th Amendment and says the states can't deprive a person of life, liberty or property without the "due process of law". Well what does "due proces" mean? The Amendment ddn't say the States can't violate the the Bill of Rights.

Courts have read there to be two types of due process: procudural due process and substantive due process. The substantive end is what is importnat here. Most rights contained within the Bill of Rights have been read as being inorporated under the 14th Amendment and applicable to the states. A few haven't but most have. If I weren't nearly 20 years removed from Con law I could tell you which ones.

|6.2.09 @ 3:49PM|#

Oh boy... I wonder what my state's official state religion will be?

|6.2.09 @ 3:52PM|#

Before that the only thing in the whole document aimed at the states was the requirement that the all have democratic governments.

States were also forbidden from passing ex post facto laws by the original text. Except against sex offenders, apparently.

|6.2.09 @ 3:55PM|#

Here we go again.
The Democrats will just keep weaseling around the Constitution until they can drive a stake through its heart.

|6.2.09 @ 3:59PM|#

Great idea!

Christianity is now the official state religion of Montana.

No Democrat is allowed to speak or write anything with which the majority disagrees.

All Democrats' financial and health records will now be made public and the government may search their homes at any time.

Democrats and their spouses are now compelled to testify in any case brought against them.

MNG|6.2.09 @ 4:11PM|#

Shouldn't we hear a bunch of bitchin about the "liberal activist" 9th Circuit?

Oh, can I note libertarian darlings Posner and Easterbrook were part of this decision?

MNG|6.2.09 @ 4:14PM|#

"The Democrats will just keep weaseling around the Constitution until they can drive a stake through its heart."

Hey dumbass, all three of the judges in this decision were GOP appointees! Two were Reagan appointees!

MNG|6.2.09 @ 4:16PM|#

On the merits I second TAO's comments. The 2nd Amendment, if it grants an individual right as found in Heller, certainly looks more like other incorporated rights than those areas the court has declined to incorporate (grand jury, etc).

|6.2.09 @ 4:16PM|#

This opinion is actually very narrow. In a nutshell:

1) In the 19th century, the Supreme Court held that the second amendment binds only the federal government

N.B. the bill of rights only binds the federal government. It has been selectively "incorporated" against the states via the 14th amendment, ratified after the civil war. Those 19th century cases were decided before the "incorporation" doctrine came to prominence in the early 20th century. Most of the bill of rights has been incorporated against the states, but some clauses have not.

2) The Supreme Court has recently held that intermediate appellate courts cannot decline to follow Supreme Court caselaw even if those cases are outdated. Only the Supreme Court may overturn itself.

3) Therefore, the Seventh Circuit, an intermediate appellate court, is obligated to follow those 19th century cases.

QED

|6.2.09 @ 4:19PM|#

In 1791 what federal resources existed that would have been active in taking your gun? Or were the founding fathers hedging against a soon to be growing federal government?

But if it was intended to suppress state action against gun holders, why would state constitutions have similar language?

From the Arkansas state constitution,
"The citizens of this State shall have the right to keep and bear arms, for their common defense."

No issue of militia there. ;-) But, the example tends to support the belief that the U.S. Constitution should only apply to the feds. Unless the department of redundency department opened for business in the late 1700s.

It's an interesting issue. My belief is that the U.S. Constitution applied to all citizens regardless of which state they live, but there is evidence against my position.

I believe NY state repealed their constitutional protection on guns in 1962, well changed it anyway.

|6.2.09 @ 4:20PM|#

Thankfully the Federal Supreme Court ruled on the 2nd Amendment in the Heller case...this 7th circus ruling will easily be overturned.

Words have meaning "...the right of the People to keep and bear arms shall not be infringed...."

http://cleanairquality.blogspot.com/2008/03/words-have-meaning-right-of-people-to.html

MNG|6.2.09 @ 4:21PM|#

Trickyvic you left out the rest:

From the Arkansas state constitution:
"The citizens of this State shall have the right to keep and bear arms, for their common defense. Oh, and marrying your sister is OK. But no gays. And only finders keepers on opossum road kill."

FTFY

|6.2.09 @ 4:27PM|#

It is the "right of the people" not a "right of the states". I don't see how it is not incorporated.

|6.2.09 @ 4:28PM|#

So...if the 2nd binds the Feds but not the states, does that mean a state can legalize, oh, ownership of anti-tank weapons? Or do the states remain children at the adult's table, only allowed to further restrict a "right"?

Zeb|6.2.09 @ 4:29PM|#

The government respects the 1st Amendment?

With the exceptions of campaign finance and broadcast media, it really is pretty damn good.

|6.2.09 @ 4:29PM|#

TrickVic @ 4:19

"My belief is that the U.S. Constitution applied to all citizens regardless of which state they live . . . ."

Your belief is simply wrong. The federal constitution establishes a federal government, and contains few express limitations on the states (i.e., only federal government may enter into treaties with foreign powers). It is a bedrock principle of our government that the states exercise plenary police power and the federal government is one of enumerated and constrained power. One method of constraint is the bill of rights, which, in and of itself, places no limits of the states.

"were the founding fathers hedging against a soon to be growing federal government?"

Seems likely, IMHO.

|6.2.09 @ 4:33PM|#

Your Good Buddy Johnny Clarke,

That's how it's worked so far. Why can a county in Kentucky re-introduce Prohibition, but California can't legalize medical weed?

I wish I had enough feet to kick everyone in the head who thinks that the Constitution grants us rights rather then outlining what rights the government can't take away.

|6.2.09 @ 4:39PM|#

The government respects the 1st Amendment?

With the exceptions of campaign finance and broadcast media, it really is pretty damn good.

QFT. The protection of the right to express oneself is better in the US today than anywhere else in the world, anytime in humanity's history. Not killing the FCC and campaign finance restrictions stops us from aceing the test.

|6.2.09 @ 4:42PM|#

I also like how they say that even with Heller, a state may make self-defense itself illegal, and then the right to bear arms would be invalidated (because it only applies to law-abiding citizens, and those defending themselves would be ipso facto non-law-abiding).

|6.2.09 @ 4:44PM|#

Fun quote from the decision:

"The right of self-defense is just a gloss on the criminal statutes"

|6.2.09 @ 4:55PM|#

"Why can a county in Kentucky re-introduce Prohibition, but California can't legalize medical weed?"

Try the 21st Amendment, sec. 2.

MNG|6.2.09 @ 4:56PM|#

Didn't everyone enjoy this pro-states rights decision, and the decision's paean to states rights and federalism?

"That the Constitution establishes a
federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule."

"Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon."

That kind of language is sure to give TAO a boner...

Steven|6.2.09 @ 4:57PM|#

Either the entire Bill of Rights is incorporated or none of it is.

The idea that courts can pick and choose is nonsense.

MNG|6.2.09 @ 5:00PM|#

And you gotta love how it refuses to engage in judicial activism, using an ambiguous text to strike down a democratic enactment, right John? Lets hear it for them!

"it is difficult to argue that legislative evaluation of which weapons are appropriate for use in self-defense has been out of the people's hands since 1868. The way to evaluate the relation between guns and crime is in scholarly journals and the political process, rather than invocation of ambiguous texts that long precede the contemporary debate."

MNG|6.2.09 @ 5:05PM|#

Steven
Don't you know that the whole idea of incorporation is liberal claptrap? The states should decide all that stuff.

|6.2.09 @ 5:18PM|#

And you gotta love how it refuses to engage in judicial activism, using an ambiguous text to strike down a democratic enactment, right John? Lets hear it for them!

The language of the Second Amendment is clear. Ignoring the plain language of the Constitution is judicial activism.

Incorporation and the Fourteenth Amendment is indeed much less clear. Indeed, incorporation was largely invented by liberal judicial theorists. To incorporate only the rights beloved of liberals is illiberal.

No surprise that Posner ruled this way. He's shown stunning ignorance of the history of gun rights before, and a general disdain for them.

MNG is obviously loving that Posner and Easterbrook were on the panel.

The Angry Optimist|6.2.09 @ 5:19PM|#

oh golly gee, MNG, since I've argued all along that it's a misread to not apply the Bill of Rights to the states, I don't think federalism is appropriate here.

|6.2.09 @ 5:35PM|#

Oh, can I note libertarian darlings Posner and Easterbrook were part of this decision?

Yeah. Disappointing.

"That the Constitution establishes a
federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule."


So, how exactly does the Constitution impose a single nationally applicable rule barring states from adopting anti-abortion laws, rather than treating such laws as local differences to be cherished?

Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon.

What utter horseshit. The Constitution does not predate the BOR - the BOR was added in order to get the Constitution enacted. How federalism that was enacted at the exact same time as the 2A somehow predates the 2A is a mystery to me.

And if you want to look at the pre-Constitutional "tradition", the right to keep and bear arms, as anyone who has spent more than ten minutes researching the issue, certainly predates the Constitution itself, and almost certainly has deeper roots than the particular flavor of federalism ensconced in the Constitution.

|6.2.09 @ 5:35PM|#

Steven @ 4:57

"Either the entire Bill of Rights is incorporated or none of it is.

The idea that courts can pick and choose is nonsense."

Yeah? Even the ninth and tenth which reserve rights to the states and the people? How would that work, pray tell?

wayne|6.2.09 @ 5:42PM|#

it's a bad day for America, probably the first of many to come.

MNG|6.2.09 @ 5:47PM|#

TAO
So you're for states rights, but only when you're for states rights. Ohhhhkaaaayyyy.

MNG|6.2.09 @ 5:49PM|#

RC
I'm guessing they would say this:
Only some of the Bill of Rights is incorporated under the 14th, but the abortion right comes from the "liberty" right found in the substantive due process clause, which comes from the due process clause of the 14th, which certainly applies to the states...

Joel|6.2.09 @ 5:51PM|#

Zeb | June 2, 2009, 4:29pm | #
The government respects the 1st Amendment?

With the exceptions of campaign finance and broadcast media, it really is pretty damn good.

Don't forget "free speech zones" at any public event where protesters might annoy the prez.

wayne|6.2.09 @ 5:59PM|#

"Yeah? Even the ninth and tenth which reserve rights to the states and the people? How would that work, pray tell?"

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The wording of the ninth precludes the states from meddling in the "enumerated" rights already in the constitution, so I see no conflict with incorporation of all the amendments.

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Same argument.

MNG|6.2.09 @ 5:59PM|#

TAO: Yeah man, I'm for states rights, we can't have no One World Government!

States Rights Proponent: Yeah Man, I agree with you, states should decide nearly all matters.

TAO: Ur, well, not all matters. There should be national standards in a very few areas.

States Rights Proponent: Such as?

TAO: Oh, just a few of course, the states should make most rules, but in a select few cases they shouldn't, you know, just in the areas of:
Guarantee against establishment of religion
Guarantee of free exercise of religion
Guarantee of freedom of speech
Guarantee of freedom of the press
Guarantee of freedom of assembly
Right to keep and bear arms
Guarantee against Unreasonable search and seizure
Warrant requirements
Protection against double jeopardy
Privilege against self-incrimination
Protection against taking of private property without just compensation
Right to a speedy trial
Right to a public trial
Right to trial by impartial jury
Right to notice of accusations
Right to confront adverse witnesses
Right to compulsory process (subpoenas) to obtain witness testimony
Right to assistance of counsel
Protections against "excessive" bail and "excessive" fines
Protection against "cruel and unusual punishments"

States Rights Proponent: WTF?

TAO, that's why I love you so much, you make me laugh...

MNG|6.2.09 @ 6:03PM|#

Hey, look at me, I believe in state's rights too! Wheeeh!

TAO, basically you were talking about how much you liked how hot sauce, how incredibly good it was, the hotter the better, how in the world could anyone not like the hottest hot sauce on on their food, give me 911 wings and Thai hot etc., etc., and then when someone gave you a taco with hot sauce you spit it out and said "well shit, of course not THIS hot sauce, I meant Uncle Pedro's Mild N' Easy Hot Sauce!"

|6.2.09 @ 6:10PM|#

"The wording of the ninth precludes the states from meddling in the "enumerated" rights already in the constitution, so I see no conflict with incorporation of all the amendments."

Then you don't understand the incorporation doctrine. The incorporation doctrine applies the strictures that limit the federal government against the states because those strictures protect rights that are "fundamental." The Ninth and Tenth amendments are not really negative strictures on what government may not do the way the other amendments are. For instance, how can you have a fundamental right to have your rights "reserved to the States"?

The incorporation doctrine, in a sense, works in conjunction with the Ninth and Tenth Amendments.

wayne|6.2.09 @ 6:20PM|#

JH, according to this source nine and ten are already "incorporated".

http://www.class.uidaho.edu/mickelsen/Media%20Readings/Incorporation_Doctrine.htm

Rice Bingham|6.2.09 @ 6:30PM|#

MNG makes me really, really miss joe.

|6.2.09 @ 6:33PM|#

but the abortion right comes from the "liberty" right found in the substantive due process clause, which comes from the due process clause of the 14th, which certainly applies to the states...

Err, no. The privacy right which protects abortion is an emanation of the penumbra of the rights found in the Bill of Rights, not from any provision of the 14th Amendment. You can look it up on the Griswold case.

So if an emanation of the penumbras of the Bill of Rights is incorporated against the States, how can a specific article of the Bill of Rights not be incorporated against the states.

wayne|6.2.09 @ 6:40PM|#

I miss Joe too. Has anybody done a google search for obituaries of Joe P Boyle, maybe he choked on his drool after Obama was elected?

wayne|6.2.09 @ 6:44PM|#

"So if an emanation of the penumbras of the Bill of Rights is incorporated against the States, how can a specific article of the Bill of Rights not be incorporated against the states."

I am no lawyer (obviously), but that is a very good question. Could it be because the whole idea of "incorporation" is an invention of SCOTUS to allow them to pick and choose what is "fundamental"?

Paul|6.2.09 @ 6:46PM|#

federal government is one of enumerated and constrained power. One method of constraint is the bill of rights, which, in and of itself, places no limits of the states.

Right, so Dade county could ban 2 Live Crew from performing on stage, then.

wayne|6.2.09 @ 6:53PM|#

"Right, so Dade county could ban 2 Live Crew from performing on stage, then."

Darn, you had to use an example where I agree with the state being overbearing!

Warmongering Lunatic|6.2.09 @ 7:29PM|#

Tulpa -

Yeah. Even Hobbes concluded that the right to self-defense couldn't be surrendered in Leviathan. But not our modern jurists.

MNG|6.2.09 @ 7:31PM|#

RC the position of the Court has long been that Roe's protections stem from the Due Process clause of the 14th itself, and so no incorporation is necessary.

From the syllabus opinion of Planned Parenthood v. Casey, 505 U.S. 833 (1992): "Roe determined that a woman's decision to terminate her pregnancy is a "liberty" protected against state interference by the substantive component of the Due Process Clause of the Fourteenth Amendment."

You're wrong again today RC. Hang it up and come back 2morrow...

|6.2.09 @ 9:18PM|#

Here is a comment from a lawyer friend of mine on this issue (the blog post he's talking about is this one):

First, let me introduce you to the concept of Selective Incorporation. The Supreme Court itself has in fact decided over and over and over again that some of the protections of the Bill of Rights do not apply to the states.* Judge Sotomayor, in following that incorporation doctrine, is doing nothing more than following Supreme Court mandate as has been followed for nearly a century. As a Circuit Court judge, she's obligated to do so.

This is pretty basic high school civics, by the way. It's not a problem, it's a principle of Federalism. Now, you can disagree with the idea of Selective Incorporation (and many do), but to present it as something unique to Sotomayor as some reason why she's outside the mainstream is extremely misleading. So yeah, I assure you that the reason "most" folks are opposed to and/or questioning Sotomayor's nomination has absolutely nothing to do with this.

Moreover, the blog post that you're linking to contains pretty lazy and misleading "analysis". Here's what's going on: SCOTUS ruled last term in DC v. Heller that the Second Amendment conveyed an individual right to own firearms. However, because the case involved a regulation in the District of Columbia (which is under exclusively federal jurisdiction), the Court didn't have to decide whether - through the aforementioned process of selective incorporation - the Second Amendment right applied to the States. So what happened then was that three different Federal Circuits then considered that issue and came to two different (and inherently reasonable) conclusions. Now the Supreme Court will likely resolve that issue. I will spare you the detail as to why but suffice it to say the following: Frankly I could see them coming down either way.

Here concludes your civics and government lesson for the day.

*Note: The Constitution itself says which provisions apply to the states and which do not. There are quite a few, if you're interested in reading it to find out which.

Michael Ejercito|6.3.09 @ 12:01AM|#

What ex post facto laws exist against sex offenders?

The Angry Optimist|6.3.09 @ 8:23AM|#

MNG - you'll note that there are a lot of things not listed in the BoRights. Of course, you listing the full list of the BoRights is somehow supposed to make me look foolish, but I don't see how.

matt|6.3.09 @ 9:48AM|#

Maybe this is a naive way of thinking about it, but I think of the Constitution and Bill of Rights as the minimum. The states can always exceed the minimum and offer more freedom, but they can never offer less. If the Constitution is the law of the land and the Bill of Rights are ammendments to the Constitution how can the states offer less freedom than the Constitution allows?

|6.3.09 @ 11:51AM|#

Michael, I think they're referring to the various laws aimed at sex offenders regardless of the date of offense/conviction.

A person who was convicted of statutory sexual seduction 30 years ago can be required to register as a sex offender and show up at the DMV every 90 days for a new picture and sex offender ID card (a la Mississippi) based on a law passed yesterday.
Evebn

I've read of people convicted of sodomy 40 years ago having to register even though the law in that states was later repealed AND similar laws in other states were overturned by the 2003 SCOTUS in Lawrence v Texas.

I don't know if residence restrictions apply to prior sex offenders not on probation/parole. If they do, add them to the list.

It's just like the Lautenberg gun ban-the courts say that the ban is not an ex post facto law because it's not a punishment and requires a voluntary act (possession of a gun after enactment of the law) to trigger the provisions. I imagine sex offender registration has been held as not being ex post facto for the same reason.

What's to stop a law from being passed that a person convicted of inciting public panic (yelling fire in a theater for example) may not possess a computer, or any form of printed literature without express written permission of their local police chief? After all, it's not a punishment, but a restriction on future behavior, right?

JB|6.3.09 @ 1:50PM|#

Good to know that Illinois is no longer considering part of the USA.

JB|6.3.09 @ 1:58PM|#

Argh. *considered

If the Supreme Court doesn't include the 2nd under incorporation as a fundamental right, it might be time to lock and load.

I generally draw my line at gun confiscation, but stating that the 2nd Amendment doesn't apply to the states would likely be close enough.

|6.3.09 @ 5:14PM|#

"""If the Supreme Court doesn't include the 2nd under incorporation as a fundamental right, it might be time to lock and load."""

Civil war because you can't own some types of guns in the land where you can't smoke cigarettes in a bar.