June 3, 2009

No Second Amendment rights for Wisconsin

In a terse and somewhat perfunctory decision yesterday, the Seventh Circuit Court of Appeals in Chicago rebuffed the National Rifle Association's offer to make the Second Amendment applicable to the States of Illinois, Indiana, and Wisconsin.

Perhaps most relevant to the current political situation, the court explicitly agreed with January's per curiam decision of a Second Circuit panel in New York that included Judge Sonia Sotomayor.

Many conservative commentators had criticized Judge Sotomayor for the latter opinion, claiming the Second Circuit shouldn't have relied on ancient 19th century case law in the wake of the U.S. Supreme Court's oracular divination last June in D.C. v. Heller, that the Second Amendment protects an individual right to self defense and by extension the right to keep handguns in one's home.

(The Heller majority managed that by pretending the Second Amendment was written in Hebrew, and read it from right to left.)

But the District of Columbia is a federal enclave and not a State, and Heller expressly declined to overrule the 19th century cases at issue.

And, the Seventh Circuit observed, even though much of the reasoning contained in those decisions had been gutted in the meantime, their ultimate holdings have never been disturbed.

Only the Supreme Court, the Seventh Circuit reasoned, has the authority to topple those holdings, despite the fact they may teeter on a destroyed foundation. The federal circuit courts of appeal are, after all, the "inferior courts," according to the Constitution.

More germane to the political critiques of Sotomayor, yesterday's opinion was authored by Judge Frank Easterbrook, who is positively Scaliaesque in his conservatism. He was joined by the libertarian lion Richard Posner* and William J. Bauer, another Republican appointee.


As almost everyone knows, the Bill of Rights, which comprises the first eight Amendments to the U.S. Constitution, begins with the words, "Congress shall make no law." In 1833, the U.S. Supreme Court affirmed that the Bill of Rights did not restrict the actions of State governments.

Then in 1868, the 14th Amendment was ratified:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law ...
While a compelling historical argument** has been made that the Framers of the 14th Amendment intended to make the Bill of Rights apply against State governments in addition to Congress, it doesn't explicitly say so, and the question has become one of the great controversies in constitutional law. Maybe the greatest.

Attempts to make the Bill of Rights apply to the States through the Privileges or Immunities Clause failed in the Slaughter-House Cases of 1873, and those arguments have been mostly a dead letter since then — until recently, that is, in the hands of gun enthusiasts.

In the meantime, the U.S. Supreme Court began to "selectively incorporate" Bill of Rights provisions starting in the 1920s with some freedom of speech cases based on reasoning derived from the Due Process Clause of the 14th Amendment.

For example, the entire First Amendment now binds State and local governments along with Congress.

Within the Court itself, a debate raged as to whether the Bill of Rights should be incorporated piecemeal, or else all in one fell swoop, the "total incorporation" position often argued in dissent by Justice Hugo Black. Black never succeeded in convincing a majority of the Court, so the provisions have been incorporated one at a time.

Last month the NRA invited the Seventh Circuit to incorporate the Second Amendment either through the Privileges or Immunities Clause or the Due Process Clause. Yesterday Judge Easterbrook & Co. refused to do either, and the City of Chicago and its suburban Village of Oak Park may continue to ban handguns within their jurisdictions, untouched by the Second Amendment's restrictions.

(Wisconsinites, of course, are protected by the State constitution, but they may not, according to the Seventh Circuit, claim Second Amendment rights against the State or local municipalities.)

Deeply rooted

Judge Easterbrook made a number of other interesting statements in response to D.C. v. Heller, the Supreme Court case which dealt extensively with the question of whether the right to keep and bear arms was "deeply rooted in this nation's history and tradition."

In support of the proposition that it is, both the Heller plaintiffs and the NRA attorneys had appealed to the writings of William Blackstone, the 18th century deity of English common law greatly admired and followed by many of this country's lawyer-founders.

While the Supreme Court had accepted the Blackstone pedigree, the Seventh Circuit did not, rejecting Blackstone because he was "discussing the law of another nation" and because Blackstone's commentaries were of general political privileges rather than the specific constitutional rights under consideration in the NRA's case. In fact, England doesn't even have a written constitution.

As for the question of local as opposed to federal control over the possession of firearms (as well as other rights), Easterbrook declared 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."

And he went further still, certainly further than Judge Sotomayor had:
Federalism is an older and more deeply rooted tradition than is the right to carry any particular kind of weapon.
Now that is going to generate some controversy, if not hysteria. It may even be the topic of an entire Federalist Society symposium.

* Also a harsh critic of the Supreme Court's decision in D.C. v. Heller.

** Prof. Akhil Reed Amar, who is cited approvingly by Judge Easterbrook, accepts it as not just compelling, but definitive.


Anonymous said...

Succumbed to teh Twitter, eh?

Anyway, please know your analysis and wit are much appreciated if not remunerated.

illusory tenant said...

Yeah, to follow RealScottWalker. And thanks!

Clutch said...

Nicely written piece, my friend. Not a whiff of tl;dr.

illusory tenant said...