In order to participate in the GunBroker Member forums, you must be logged in with your GunBroker.com account. Click the sign-in button at the top right of the forums page to get connected.

7th Circuit: 2nd Am is NOT incorporated to states

Little-AcornLittle-Acorn Member Posts: 103 ✭✭
Several weeks ago, the 9th Circus Court of Appeals in San Francisco ruled that the 2nd amendment's blanket ban on "gun control" laws applied to state and local governments, as well as to the Federal governments. Now the 7th Circuit has ruled the opposite: that its ban does not apply to state and local governments.

I pointed out back then, that the 9th Circus ruling was unnecessary: the clear language of the 2nd amendment makes no restriction to only the Federal govenment, unlike the language of the 1st amendment, which restricts its regulation to only the Fed ("Congress shall make no law..."). Courts have violated that clear distinction, of course, for generations, pretending the amendment didn't say what it said, or that the distinction was somehow "unclear".

But today's 7th Circuit ruling is a clear violation of the 2nd's ban on gun restrictions.

SWince two different Circuit Courts have now ruled in opposite ways on the same issue, this often (but not always) causes the Supreme Court to take the case if it's appealed there.

Hopefully the Supremes will grant cert and hear the case once it's presented.


http://www.bloomberg.com/apps/news?pid=20601087&sid=awIn1M4tWxi8&refer=worldwide

Chicago Law Banning Handguns in City Upheld by Court

By Andrew M. Harris

June 2 (Bloomberg) -- A Chicago ordinance banning handguns and automatic weapons within city limits was upheld by a U.S. Court of Appeals panel, which rejected a challenge by the National Rifle Association.

The unanimous three-judge panel ruled today that a U.S. Supreme Court decision last year, which recognized an individual right to bear arms under the U.S. Constitution's Second Amendment, didn't apply to states and municipalities.

"The Supreme Court has rebuffed requests to apply the second amendment to the states," U.S. Circuit Judge Frank Easterbrook wrote, upholding lower court decisions last year to throw out suits against Chicago and its suburb of Oak Park, Illinois.

The Fairfax, Virginia-based NRA sued the municipalities in June 2008, one day after the U.S. Supreme Court's decision in District of Columbia v. Heller struck down a hand-gun ban in the U.S. capital district encompassing Washington.

"We clearly disagree with the court's conclusion," NRA attorney William N. Howard, a partner in Chicago's Freeborn & Peters LLP, said in a telephone interview. "The next step will be an appeal to the Supreme Court."

Applicable Law

A San Francisco-based federal appeals court, with jurisdiction over cases from California, Oregon, Washington and six other Western U.S. states, in April ruled the Second Amendment can be read as applicable to states and counties.

"This thing is headed for the Supreme Court," University of Chicago Constitutional Law Professor Richard Epstein said in a phone interview.

"This is a question where you cannot run a split administration and there's no way the circuits can resolve this amongst themselves," he said.

The 7th Circuit case is National Rifle Association of America v. City of Chicago, 08-4241, U.S. Court of Appeals for the Seventh Circuit (Chicago). The 9th Circuit case is Nordyke v. King, 07-15763, in the U.S. Court of Appeals for the Ninth Circuit (San Francisco).


(Full text of the article can be read at the above URL)

Comments

  • Don McManusDon McManus Member Posts: 23,460 ✭✭✭✭
    edited November -1
    There is a real possibility that a SCOTUS review will be delayed until Obama can replace Scalia or Kennedy. At that point, one would assume that the 7th Circuit would be upheld.

    With Kennedy, however, it is possible (though not a given) that the 9th would be upheld.

    Either way, SCOTUS needs to hear this.

    If the 9th is upheld, there is a victory that will set the stage for repeal of 1,000s of laws across the country.

    If the 7th is upheld, the gates of hell are opened, and freedom loving Americans may well be forced to take action to ensure the security of a Free state.

    It is time. It is past time to continue to gnaw at the corners. This issue must be brought to a head. Only then will we know if are lead or we are ruled.
    Freedom and a submissive populace cannot co-exist.

    Brad Steele
  • darkwaterdarkwater Member Posts: 99 ✭✭
    edited November -1
    It would seem their docket should be determined without pressure from any other political party or branch of government. Wouldn't the same bench want to tackle this one as a follow-up to DC v Heller, even though it was a close 5-4 decision? Does it take a majority vote of the SCOTUS to agree to hear a case?
  • Don McManusDon McManus Member Posts: 23,460 ✭✭✭✭
    edited November -1
    quote:Originally posted by darkwater
    It would seem their docket should be determined without pressure from any other political party or branch of government. Wouldn't the same bench want to tackle this one as a follow-up to DC v Heller, even though it was a close 5-4 decision? Does it take a majority vote of the SCOTUS to agree to hear a case?
    One would like to think the process of getting an appeal through to SCOTUS would the same in all circumstances.

    Here's an interesting view from SLATE with recommendations as to how to influence what ends up on the docket.

    http://www.slate.com/id/2206039/pagenum/all/

    I did a quick check on how SCOTUS decides what to hear, and got to the rules of the court. I don't have the time, patience or (apparently) the mastery of the language required to figure it out.

    http://www.supremecourtus.gov/ctrules/2007rulesofthecourt.pdf
    Freedom and a submissive populace cannot co-exist.

    Brad Steele
  • darkwaterdarkwater Member Posts: 99 ✭✭
    edited November -1
    Don, thanks for the interesting reads. Out of that material, I thought it would be relevant to post the following excerpts:

    From Slate, with emphasis added:

    Each year, parties that have lost in the lower courts file about 9,000 petitions for a writ of certiorari (cert for short) in which they beg the court to hear them. The Supreme Court has nearly complete discretion over which cases it will take. Last term, only 69 cert petitions resulted in arguments before the justices.

    The chief deputy clerk of the court has even said that amicus briefs are one of four explicit factors the court weighs in deciding whether to grant a case. (The others are the Supreme Court's jurisdiction to hear the case, lower-court conflicts, and the presence of competing petitions on the disputed legal issue.)

    And from John Bursch on ABAnet, with emphasis added:

    The truth is that no Justice is likely to even read your cert. petition. The audience is a group of 25- to 27-year-olds who have generally been out of law school for only one year. Moreover, only two sets of eyes will ever view the petition: the eight-Justice pool clerk and one of Justice Stevens' clerks. You have to capture the clerks' attention immediately, because the amount of work they have is staggering. Accordingly, you should draft the question in a way that will grab their attention and try to make the petition user friendly.

    Chris observed that the pool memo clerks tend to focus on the following factors when deciding whether to recommend that the Court grant a petition: (1) jurisdiction (finality, independent state grounds, etc.), (2) whether there is an important federal question or a conflict among the circuits, (3) the presence of amici filings, and (4) whether there is another case that may be a better candidate for certiorari than the one under review (if your case is scheduled for a conference, no decision issues, and the Court does not immediately reschedule the case for the next conference, there is a strong possibility the Court is considering whether to take a similar case in its place).
  • Don McManusDon McManus Member Posts: 23,460 ✭✭✭✭
    edited November -1
    Thanks for wading through the muck for us darkwater.

    I am interested in the line from the Bursch piece that refers to only two sets of eyes seeing a petition. One of those sets belongs to the one of the eight clerks in the pool and the second set belongs to JP Stevens' clerk. On the surface, it would seem then, that Justice Stevens has significant influence as to what gets heard and what does not. He is probably a good choice, as his reputation is fairly middle of the road. He did, however, vote with the minority in Heller, which has interesting implications regarding the referenced 7th and 9th circuit cases.
    Freedom and a submissive populace cannot co-exist.

    Brad Steele
  • darkwaterdarkwater Member Posts: 99 ✭✭
    edited November -1
    quote:Originally posted by Don McManus
    Thanks for wading through the muck for us darkwater.


    Pun intended? :D

    Yes, it will be interesting to see how this plays out...
  • Don McManusDon McManus Member Posts: 23,460 ✭✭✭✭
    edited November -1
    quote:Originally posted by darkwater
    quote:Originally posted by Don McManus
    Thanks for wading through the muck for us darkwater.


    Pun intended? :D

    Yes, it will be interesting to see how this plays out...



    [:)] You chose the name. [:)]
    Freedom and a submissive populace cannot co-exist.

    Brad Steele
  • darkwaterdarkwater Member Posts: 99 ✭✭
    edited November -1
    Actually, my parents did...Douglas...which in Gaelic means "dark or black water".
  • RocklobsterRocklobster Member Posts: 7,060
    edited November -1
    IMO, this was the original aim of the 9th's ruling - they knew that it would be overturned, resulting in it possibly being forced into the SCOTUS.

    They are also well aware that Obama will stack the SCOTUS with far-left radicals who will "interpret" the constitution in whatever manner makes Obama happy. Since he has already stated that he sees the constitution as a "constraint" that "limits government too much," we can depend upon the 2nd Amendment being nullified.

    Obama's first idiot nominee, Sotomayor is not only only a member of "La Raza" (a fact certainly supported by her recent racist remarks), she has also ruled on two separate occasions that the 2nd does not apply to the states, and it furthermore does not guarantee the individual right of firearm ownership.

    As has been mentioned, only one more progressive will be all that is required to render the 2nd Amendment null and void.
  • buffalobobuffalobo Member Posts: 2,348 ✭✭✭✭✭
    edited November -1
    quote:As has been mentioned, only one more progressive will be all that is required to render the 2nd Amendment null and void.


    Step 1 in the disarming and subjugation of American citizen.

    Will this be the trigger to start mass civil disobedience, or will it have to come to confiscation? Surely gun grabbers will use media and crisis to continue to soften public, while planning next move prior to confiscation? They have time and incrementalism on their side. Can we educate and awaken enough patriots to take back country before too late?
  • salzosalzo Member Posts: 6,396 ✭✭
    edited November -1
    quote:Originally posted by Little-Acorn

    I pointed out back then, that the 9th Circus ruling was unnecessary: the clear language of the 2nd amendment makes no restriction to only the Federal govenment, unlike the language of the 1st amendment, which restricts its regulation to only the Fed ("Congress shall make no law...").



    You pointed it out then, and you were wrong. You point it out now, and you are still wrong.
    You need to study american history. I suggest you start with the ratification debates and records.
  • Little-AcornLittle-Acorn Member Posts: 103 ✭✭
    edited November -1
    quote:Originally posted by salzo
    quote:Originally posted by Little-Acorn
    I pointed out back then, that the 9th Circus ruling was unnecessary: the clear language of the 2nd amendment makes no restriction to only the Federal govenment, unlike the language of the 1st amendment, which restricts its regulation to only the Fed ("Congress shall make no law...").

    You pointed it out then, and you were wrong. You point it out now, and you are still wrong.
    You need to study american history. I suggest you start with the ratification debates and records.

    Needless to say, I am completely correct.

    The 1st amendment does, in fact, say "Congress shall make no law.....". It clearly addresses the Fed govt only, since the Framers wrote the Constitution in such a way that Congress must make ALL Federal laws, and the Prez has the choice of accepting them or vetoing.

    And the 2nd does, in fact, say "....the right... shall not be infringed." It is careful to not confine its mandate to just Congress, as the 1st did, but to make it a blanket statement meaning NO ONE can infringe the right, period.

    Lots have people have said it doesn't really mean that. But do you know what? After each anti-gun-rights wishful thinker says that, the language in the Constitution can be checked. And lo and behold, it hasn't changed. It still DOES say that.

    This causes no end of frustration for those who want to take away people's rights. Perhaps those poor sods should try reducing their expectations a little... like to the level where they no longer expect the Constitution to change just because they say it should.

    [;)]
  • Don McManusDon McManus Member Posts: 23,460 ✭✭✭✭
    edited November -1
    quote:Originally posted by Little-Acorn
    Needless to say, I am completely correct.

    The 1st amendment does, in fact, say "Congress shall make no law.....". It clearly addresses the Fed govt only, since the Framers wrote the Constitution in such a way that Congress must make ALL Federal laws, and the Prez has the choice of accepting them or vetoing.

    And the 2nd does, in fact, say "....the right... shall not be infringed." It is careful to not confine its mandate to just Congress, as the 1st did, but to make it a blanket statement meaning NO ONE can infringe the right, period.

    Lots have people have said it doesn't really mean that. But do you know what? After each anti-gun-rights wishful thinker says that, the language in the Constitution can be checked. And lo and behold, it hasn't changed. It still DOES say that.

    This causes no end of frustration for those who want to take away people's rights. Perhaps those poor sods should try reducing their expectations a little... like to the level where they no longer expect the Constitution to change just because they say it should.

    [;)]

    Salzo is, in fact, correct in that the historical application of the BOR following the ratification of the 14th Amendment has been through incorporation on an individual basis. To date there has not been a definitive finding by the Supreme Court that the 2nd is in fact incorporated to the states.

    That said, it is my position (one that strangely SCOTUS has not just accepted at face value[:)]) that the 2nd - 8th are rightfully incorporated to the states through Article 4, Section 2, the fabled 'Privileges and Immunities' clause. The 14th simply extended these Privileges and Immunities to freed slaves, but because it was a rushed and badly worded Amendment, and created in a era where punishing the South was in vogue, gave us such things as Anchor Babies and other confusions.

    The bottom line is that it is obvious that any Amendment that states '..the right of the people..' or 'No person...', or '..the accused..', etc. is incorporated to the States as it is a protection extended to the individual citizen. Obviously it would have been more clear had they specifically stated to whom the restriction applied, but when a citizen is guaranteed a right, there is no logical argument that it can be taken by government on any level. Logic, however, has not been blindly applied by the judiciary.

    We need to, as a society, get over our concern as to who intended what and when, and simply accept the wording that was put into the Constitution.
    Freedom and a submissive populace cannot co-exist.

    Brad Steele
  • Little-AcornLittle-Acorn Member Posts: 103 ✭✭
    edited November -1
    quote:Originally posted by Don McManus
    Salzo is, in fact, correct in that the historical application of the BOR following the ratification of the 14th Amendment has been through incorporation on an individual basis.
    He is correct in that (as I have said) many people have said it doesn't apply to the states.

    Where he is mistaken, is where he decided they were right. In fact, they were as wrong as he is now, and for the reasons you have stated.

    quote:We need to, as a society, get over our concern as to who intended what and when, and simply accept the wording that was put into the Constitution.
    My point exactly.
  • salzosalzo Member Posts: 6,396 ✭✭
    edited November -1
    LittleNut-
    Will you just go read something for Gods sake? It is one thing to be ignorant of a subject-but the way you insist that your regawdamndiculous drivel about "the first amendment says congress, but the second doesnt say anything about congress and blah blah blah blah.." is correct when it is so god dang wrong- I mean it is embarassing just reading it.
    Will you just go read a book!
    You THINK you are right, but I KNOW that you are wrong. Dont take my word for it-take your head out of ytour * and go read a book!!
  • Jim RauJim Rau Member Posts: 3,550
    edited November -1
    All of the rights addressed in the Bill of Rights refer to rights of the individual. Thus these rights, or the up holding of these rights, pretain to every individual and to ALL levels of government.
    Every law, from the smallest juristicution to the Federal level which restricts/infringes upon the rights of the individual are a direct violation of the Constitution.
    Simple as dirt, but may try to overly complicated it to try and violate our rights.[V]
  • Little-AcornLittle-Acorn Member Posts: 103 ✭✭
    edited November -1
    quote:Originally posted by salzo
    drivel about "the first amendment says congress, but the second doesnt say anything about congress and blah blah blah blah.." is correct when it is so god dang wrong-
    Actually it is correct. The amendments do say what I described. And ther meaning is clear from their words.

    Sounds like I'm not the one who needs to do some simple reading here.

    Have you sought help for your rage and frustration?

    BTW, you mentioned reading books. There's a fairly good chance I had read more of them before you were born, than you have to date. Probably as many as my now-USSC-bound classmate, though I read what they said rather than what someone wishes they said.

    Try it.

    (The rest of Salzo's ranting, namecalling, and insults deleted)
  • Little-AcornLittle-Acorn Member Posts: 103 ✭✭
    edited November -1
    quote:Originally posted by Jim Rau
    All of the rights addressed in the Bill of Rights refer to rights of the individual. True.

    However, the language of those amendments comprises commands to government, or sometimes specific branches of government, on what they shall or shall not do. Usually directing the applicable branch(es) to not take away or restrict the right(s) in question.

    quote: Thus these rights, or the up holding of these rights, pretain to every individual Correct.

    quote:and to ALL levels of government.Correct, except where the actual amendment itself says otherwise. As (for example) the 1st amendment does, restricting its command to only Congress. The 2nd OTOH does not, and your description is correct in its case: By its own wording, it applies to ALL governments in the country, from the Fed govt down to the smallest locality.

    BTW, the 1st was written that way, because when it was written, many states had official state religions, and the Framers were being careful NOT to disturb that. Since that time, most (all?) states have removed their requirements for religion. But the wording of the 1st amendment hasn't changed. And so, neither has its scope.
  • pickenuppickenup Member Posts: 22,844 ✭✭✭✭
    edited November -1
    Insults....tsk....tsk....[V]
Sign In or Register to comment.