7th Circuit Decision

Shocker.....

Well, now I guess its up to Sotamayor and the SCOTUS gang.

I doubt SC will differ.

Hmmmm...

Good to know. Obviously I'm no student of the law

As a non-lawyer guy, I read the decision.

Maybe the lawyer-guys can help me. It seems that the 7th Circuit has historically believed that the Bill of Rights shall not be applied en bloc to the states. The 7th Circuit does not wish to change its course now, but recognizes the Supreme Court's power to overturn it. That doesn’t really sound so bad.

But here are some disturbing excerpts from the decision:

Suppose that 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.

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Self-defense 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. An obligation to avoid lethal force in self-defense might imply an obligation to use pepper spray rather than handguns.

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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 an empirical question, 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.

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One function of the second amendment is to prevent the national government from interfering with state militias. It does this by creating individual rights, Heller holds, but those right may take a different shape when asserted against a state than against the national government.

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Those things sound disturbing to a guy like me. So we have a Constitution, but if the state or city or county knows better it can suspend parts of it?

I think that the Court of Appeals was saying that they have no power to overturn this law, because of Supreme Court Precedent, whether rational or applicable or not, there is a precedent and they cannot overrule it. They even cited a case wherein they were congratulated for affirming a decision that the SCOTUS overturned later, SCOTUS citing that they ALONE had the power to overturn rulings from "their court".

On this particular case, I kind of agree with them. There are times when there are some kind of injustice happening that demands action, but this is almost "constitutional policy" and the SCOTUS should be the ones doing it...

I think the holding in the case is legally correct, but there was no need for the multi-page, anti-gun rant by Easterbrook at the end of the opinion. It was a thinly veiled attempt to try to convince the Supreme Court that the 2nd Amendment should not be incorporated against the states.

The federalist argument at the end was a complete joke, considering the plethora of national restrictions imposed on states that appellate judges such as Easterbrook support every day. What he meant to say was, "It is ok to force national restrictions I agree with on the states, but laws that I don't agree with should not be imposed on my state."

I read the opinion and all I heard was

"Fhooosh!!!"

The sound of a punt flying by me on its way to the SCOTUS. The appeals courts are split, this issue will be taken up in the next session of the court.

Actually the ranting is not necessarily a bad thing, the SC has little tolerance for anyone trying to game them or being lectured from a lower court.

I would bet real money that the the SC has been working/discussing at it's leisure and at length on the whole issue of regulation, level of scrutiny etc.

They knew it was coming back within 18 odd months with a split, many things can be said about the SC as individuals or as a whole but stupid isn't really one of them.

With any luck, it will be joined with Maloney v. Cuomo, and she will have to recuse herself.... she was on the 3 judge panel which ruled against incorporation in Maloney v. Cuomo and can not hear it if she is on SCOTUS at the time it comes up.

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I assume the case is then heard by eight justices? I don't know the answer to the question, but I assume there is no such thing as a judge or justice "sitting by designation" in the SCOTUS.

Appellate trivia question for my fellow THR members: Federal court. District Court rules "A." Federal court of appeals panel reverses and rules "B." En banc court of appeals vacates decision and agrees to hear issue en banc. En banc court consists of 8 judges due to empty seat on court. Four judges decide "A" and four judges decide "B." What is the final result for the case "A" or "B"?

If a Supreme Court Justice recuses herself, then the case will be heard by the remaining eight Justices. If there is a tie vote on an appellate review case, the lower court decision is automatically affirmed.

I'm not sure how the Supreme Court handles cases of original jurisdiction with respect to tie votes.

I don't know for sure, but with respect to your trivia question I would guess that the district court's decision finding "A" is affirmed based on the general appellate principle that if a higher court is unable to come to a decision, the lower court's decision remains in place.

I doubt SC will differ.

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I'll bite. Why do you think so? This is the same SCOTUS that voted for Scalia's Heller decision, which made it pretty clear that the 2nd should end up incorporated. Sotomayor will probably be on the court by then, but Souter won't, so that's a wash. What is the change that leads the SCOTUS to surprise everyone and refuse to incorporate? I don't think it'll go that way.

I don't know for sure, but with respect to your trivia question I would guess that the district court's decision finding "A" is affirmed based on the general appellate principle that if a higher court is unable to come to a decision, the lower court's decision remains in place.

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You are correct! To be more precise, the court's decision to hear the appeal en banc vacates the panel's decision and renders it a nullity. Then, when the en banc court failed to obtain a majority decision, the district court's decision stands as the final word on the matter (absent an appeal to the SCOTUS of course).

it is neither affirmed or reversed

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You sure about that? Take a look at this: http://www.supremecourtus.gov/opinions/07pdf/06-1498.pdf

As I said above, if there is a tie vote, the lower court's decision is affirmed.

As I said above, if there is a tie vote, the lower court's decision is affirmed.

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Is the distinction that it is affirmed only in that circuit rather than nationwide?

Is the distinction that it is affirmed only in that circuit rather than nationwide?

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Like legaleagle said, it's really just the same as if the SC denied cert. Tie votes don't have any precedential value. "Affirmed" doesn't mean the Supreme Court adopts the lower court's reasoning or puts its stamp of approval on the lower court's opinion. All "affirmed" means is that the lower court holding is upheld.

The 7th Circuit issued its opinion in NRA v Chicago today (quick turnaround since it was argued on May26...). If you listened to oral argument, you will know what the decision was... No on incorporation.



Here is a link:

http://www.ca7.uscourts.gov/tmp/O01FG343.pdf

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Link doesn't work

NRA Appeals Seventh Circuit Ruling to the U.S. Supreme Court

http://www.nraila.org/News/Read/NewsReleases.aspx?ID=12549

Wednesday, June 03, 2009

Fairfax, Va. – Today, the National Rifle Association filed a petition for certiorari to the U.S. Supreme Court in the case of NRA v. Chicago. The NRA strongly disagrees with yesterday's decision issued by a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, holding that the Second Amendment does not apply to state and local governments.

“The Seventh Circuit got it wrong. As the Supreme Court said in last year's landmark Heller decision, the Second Amendment is an individual right that ‘belongs to all Americans'. Therefore, we are taking our case to the highest court in the land,” said Chris W. Cox, NRA chief lobbyist. “The Seventh Circuit claimed it was bound by precedent from previous decisions. However, it should have followed the lead of the recent Ninth Circuit Court of Appeals decision in Nordyke v. Alameda County, which found that those cases don't prevent the Second Amendment from applying to the states through the due process clause of the Fourteenth Amendment.”

This Seventh Circuit opinion upholds current bans on the possession of handguns in Chicago and Oak Park, Illinois.

“It is wrong that the residents of Chicago and Oak Park continue to have their Second Amendment rights denied,” Cox concluded. “It’s time for the fundamental right of self-defense to be respected by every jurisdiction throughout our country.”

-NRA-

Established in 1871, the National Rifle Association is America’s oldest civil rights and sportsmen's group. Four million members strong, NRA continues its mission to uphold Second Amendment rights and to advocate enforcement of existing laws against violent offenders to reduce crime. The Association remains the nation's leader in firearm education and training for law-abiding gun owners, law enforcement and the military.

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So what's the chance of SCOTUS deciding to hear this?



If they do, when will it most likely be heard/decided on?

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So far...

The Second Circuit Court (CT, NY & VT) and the Seventh Circuit Court (IL, IN & WI) have ruled that the 2nd Amendment is not incorporated.

The Ninth Circuit Court (AK, AZ, CA, ID, MT, NV, OR & WA) has ruled that the 2nd Amendment is incorporated.

Due to the split in the Circuit Court of Appeals, this will be going to SCOTUS.

I'm puzzled

Maybe someone can clarify for me, but isn't Ill generally more corrupt than nearly every other State. And wouldn't it be beneficial for the corrupt politicians and organized crime figures to have the majority of the Ill population disarmed?
Aren't District Judges appointed???
I ask because I recall a number of news stories regarding the most recent governor being indicted and the news channels commenting that Ill politics has always been corrupt.
I did couple of google searches and found, 3 million hits using"Illinois crime" and 350,000 hit searching "Illinois organized crime".

One could logically assume that corruption would also extend to the Illinois court system as well as State and local government. If even half of question is true, How would anyone get a fair hearing.