7th Circuit Ruling Agrees With Sotomayor on Second Amendment

The U.S. Court of Appeals for the 7th Circuit today ruled that the Second Amendment right to bear arms cannot be held to restrict state gun control laws until the Supreme Court rules that the right applies to the states.

As a result, the ruling in National Rifle Association v. Chicago will likely give Supreme Court nominee Sonia Sotomayor some much-needed political cover against criticism of a similar Second Amendment ruling she joined in on the 2nd Circuit earlier this year, Maloney v. Cuomo. In that case, using the same reasoning, the 2nd Circuit panel upheld a New York ban on numchucks, weapons made of two bars joined by a cord. Today's ruling by 7th Circuit chief judge Frank Easterbrook specifically states, "We agree with Maloney." Judge Richard Posner, like Easterbrook a leading conservative on the court, joined the ruling as did Judge William Bauer.

"It can't be a big strike against her that she decided it was not in her authority to incorporate the Second Amendment against the states," said Doug Kendall of the Constitutional Accountability Center, which argued in favor of incorporation in the Chicago case on the basis of the Constitution's "privileges or immunities" clause.

The Easterbrook decision noted that the Supreme Court in last year's D.C. v. Heller decision, which struck down a D.C. handgun ban, nonetheless left open whether the right to bear arms applies to state regulation. Since nineteenth century precedents that went against incorporation still stand, Easterbrook said appeals courts are not entitled to "strike off on their own." As a result, the 7th Circuit panel declined to apply Heller to laws in Chicago and Oak Park Illinois that ban the possession of most handguns. How and whether to apply a right to states is "for the justices rather than a court of appeals," Easterbrook wrote. The nine-page decision was issued a week after the case was argued.

The ruling today deepens a circuit split on the issue that will almost certainly draw the attention of the Supreme Court. While both the New York and Chicago rulings go against incorporation, the 9th Circuit's decision April 20 in Nordyke v. King did apply the Second Amendment to the states. Nordyke is under consideration for en banc review. Petitioners in the New York case, now titled Maloney v. Rice, have until June 29 to file their appeal to the Supreme Court. If that is the case the Court agrees to review to resolve the split, and if Sotomayor is confirmed as a justice, custom would keep her from participating because she ruled on it below. But if another case becomes the vehicle for the next major Second Amendment ruling, she could join in. 

Comments

[Matthew Harris]

Typo alert - I meant to write:

Let's NOT confuse ...

Thanks!

[Matthew Harris]

Let's confuse deference to a 19th century opinion with holding that the 2nd amendment isn't incorporated by the 14th.

The opinion on which the 2nd and 7th Circuit rely was written before the incorporation doctrine was even developed. Frankly, that case has been overruled by 50 years of incorporation jurisprudence, and it would be shocking if the Supreme Court held otherwise when it considers the question.

The biggest problem with Sotomayor's opinion was that she wrote that it was "well-settled" that the 2nd Amendment didn't apply to the states, when the truth is that it was far from well-settled, for the reason I described above.