The Post-Heller Fight for Second Amendment Rights in Illinois Proceeds


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.)

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so that they applied to the states through the Fourteenth Amendment had not yet existed at the time), or that it is outdated and essentially overturned by modern Supreme Court precedent.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.