NATIONAL RIFLE ASSOCIATION OF AMERICA, INC., et al., Plaintiffs-Appellants, v. CITY OF CHICAGO, ILLI

[jody]

Source: United States Court of Appeals Seventh Circuit

ARGUED MAY 26, 2009—DECIDED JUNE 2, 2009

Before EASTERBROOK, Chief Judge, and BAUER and POSNER, Circuit Judges.

EASTERBROOK, Chief Judge. Two municipalities in Illinois ban the possession of most handguns. After the Supreme Court held in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), that the second amendment entitles people to keep 2 Nos. 08-4241, 08-4243 & 08-4244 handguns at home for self-protection, several suits were filed against Chicago and Oak Park. All were dismissed on the ground that Heller dealt with a law enacted under the authority of the national government, while Chicago and Oak Park are subordinate bodies of a state. The Supreme Court has rebuffed requests to apply the second amendment to the states. See United States v. Cruikshank, 92 U.S. 542 (1876); Presser v. Illinois, 116 U.S. 252 (1886); Miller v. Texas, 153 U.S. 535 (1894). The district judge thought that only the Supreme Court may change course. 2008 U.S. Dist. LEXIS 98134 (N.D. Ill. Dec. 4, 2008).

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One function of the second amendment is to prevent the national government from interfering with state militias. It Nos. 08-4241, 08-4243 & 08-4244 7 does this by creating individual rights, Heller holds, but those rights may take a different shape when asserted against a state than against the national government. Suppose Wisconsin were to decide that private ownership of long guns, but not handguns, would best serve the public interest in an effective militia; it is not clear that such a decision would be antithetical to a decision made in 1868. (The fourteenth amendment was ratified in 1868, making that rather than 1793 the important year for determining what rules must be applied to the states.) Suppose a state were to decide that people cornered in their homes must surrender rather than fight back—in other words, that burglars should be deterred by the criminal law rather than self help. That decision would imply that no one is entitled to keep a handgun at home for self-defense, because self-defense would itself be a crime, and Heller concluded that the second amendment protects only the interests of law-abiding citizens. See United States v. Jackson, 555 F.3d 635 (7th Cir. 2009) (no constitutional right to have guns ready to hand when distributing illegal drugs).

Our hypothetical is not as farfetched as it sounds. Selfdefense is a common-law gloss on criminal statutes, a defense that many states have modified by requiring people to retreat when possible, and to use non-lethal force when retreat is not possible. Wayne R. LaFave, 2 Substantive Criminal Law §10.4 (2d ed. 2003). An obligation to avoid lethal force in self-defense might imply an obligation to use pepper spray rather than handguns. A modification of the self-defense defense may or may not be in the best interest of public safety—whether guns deter or facilitate crime is 8 Nos. 08-4241, 08-4243 & 08-4244 an empirical question, compare John R. Lott, Jr., More Guns, Less Crime (2d ed. 2000), with Paul H. Rubin & Hashem Dzehbakhsh, The effect of concealed handgun laws on crime, 23 International Rev. L. & Econ. 199 (2003), and Mark Duggan, More Guns, More Crime, 109 J. Pol. Econ. 1086 (2001)—but it is difficult to argue that legislative evaluation of which weapons are appropriate for use in self-defense has been out of the people’s hands since 1868. The way to evaluate the relation between guns and crime is in scholarly journals and the political process, rather than invocation of ambiguous texts that long precede the contemporary debate. See Clark v. Arizona, 548 U.S. 735 (2006) (state may reformulate, and effectively abolish, insanity defense); Martin v. Ohio, 480 U.S. 228 (1987) (state may assign to defendant the burden of raising, and proving, self-defense).

Chicago and Oak Park are poorly placed to make these arguments. After all, Illinois has not abolished self-defense and has not expressed a preference for long guns over handguns. But the municipalities can, and do, stress another of the themes in the debate over incorporation of the Bill of Rights: 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. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (“It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”); Crist v. Bretz, 437 U.S. 28, 40–53 (1978) (Powell, J., dissenting) (arguing that only “fundamental” liberties Nos. 08-4241, 08-4243 & 08-4244 9 should be incorporated, and that even for incorporated amendments the state and federal rules may differ); Robert Nozick, Anarchy, State, and Utopia (1974). Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon. How arguments of this kind will affect proposals to “incorporate” the second amendment are for the Justices rather than a court of appeals.

AFFIRMED


Read more: http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=rss_sho&shofile=08-4241_002.pdf

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This decision affects Sotomayor’s nomination because Judges Richard Posner and Frank Easterbrook, appointed to the 7th U.S. Circuit Court of Appeals in Chicago by President Ronald Reagan, took the same position as Sotomayor that the Second Amendment was not incorporated in the Fourteenth Amendment.

The case will most likely be accepted by SCOTUS along with Nordyke v. King, 563 F.3d 439 (9th Cir. 2009), to determine whether the 2nd Amendment is incorporated in the 14th Amendment like the 1st, 4th and other amendments.