Posse comitatus in Jackson County, Wisconsin

Jill Sixpack explains the etymology and its resonance.

This week, Jackson County District Attorney Gerald Fox is pretending to be a constitutional scholar, claiming that the Supreme Court's recent decision in McDonald v. Chicago "immediately renders some of Wisconsin's current laws unconstitutional."

Maybe Mr. Fox is not briefing his cases as accurately as he might. The fact of the matter is, McDonald v. Chicago didn't render any current laws unconstitutional — let alone Wisconsin's — and that includes the Chicago and Oak Park, IL ordinances which instigated the lawsuits leading eventually to the Supreme Court's decision.

The Supreme Court's holding in McDonald is that the Second Amendment of the U.S. Constitution is incorporated in the Due Process Clause of the Fourteenth Amendment. This means only that from now on, State and local arms regulations are to be evaluated in the light of McDonald, which in turn directs lower courts for guidance to District of Columbia v. Heller, last year's decision of the U.S. Supreme Court that invalidated D.C. handgun restrictions, which were similar — but not identical — to Chicago's and Oak Park's.

McDonald v. Chicago's earlier incarnation is NRA v. Chicago (567 F. 3d 856), which was discussed below, here and here. Once again, that decision did not reach the question of whether or not the local ordinances were constitutional. All three judges on the 7th Circuit panel in NRA v. Chicago decided only that they possessed neither the judicial authority nor power to make that decision at all, which was true, at the time. Frank Easterbrook wrote it, for crying out loud.

(Citing Sonia Sotomayor for support, incidentally.)

And it's only that decision that the Supreme Court reversed. The Court didn't touch the question of the local ordinances' validity. The majority delivered that responsibility back to the circuit court and in turn, it will head down to the district court where it originated.

While the district court addressed directly the constitutionality of the ordinances initially, it's essential to take note that it wasn't the district trial court's nuts and bolts decision that was appealed to Sam Alito & Company but rather the decision of the 7th Circuit, itself an appellate decision substantively attenuated from the ordinances and revolving entirely on questions of political and constitutional theory.

And because they love the elitist Harvard egghead stuff, that's why the United States Supreme Court accepted review of the case, not to jigger around with some Midwest suburb's city council meeting.

If Mr. Fox believes his expressly identified set of affected Wisconsin statutes are unconstitutional by dint of McDonald, that's one thing.

But at least he could wait until the 7th Circuit courts (under whose federal jurisdiction Mr. Fox is, by the way) do what the Supreme Court ordered them to do, that is, reexamine the record in the light of this doctrinally historic and groundbreaking decision and then if they are thusly satisfied, invalidate the local gun ordinances.

Until that moment at least, it would certainly appear that District Attorney Fox is off on a bit of a procedural breakaway. Prosecutorial discretion, of course, but here is a touch of pushing the envelope.