Chicago Law Banning Handguns in City Upheld

[PCGS65]

Chicago Law Banning Handguns in City Upheld by Court

By Andrew M. Harris

June 2 (Bloomberg) -- A Chicago ordinance banning handguns and automatic weapons within city limits was upheld by a U.S. Court of Appeals panel, which rejected a challenge by the National Rifle Association.

The unanimous three-judge panel ruled today that a U.S. Supreme Court decision last year, which recognized an individual right to bear arms under the U.S. Constitution’s Second Amendment, didn’t apply to states and municipalities.

“The Supreme Court has rebuffed requests to apply the second amendment to the states,” U.S. Circuit Judge Frank Easterbrook wrote, upholding lower court decisions last year to throw out suits against Chicago and its suburb of Oak Park, Illinois.

The Fairfax, Virginia-based NRA sued the municipalities in June 2008, one day after the U.S. Supreme Court’s decision in District of Columbia v. Heller struck down a hand-gun ban in the U.S. capital district encompassing Washington.

“We clearly disagree with the court’s conclusion,” NRA attorney William N. Howard, a partner in Chicago’s Freeborn & Peters LLP, said in a telephone interview. “The next step will be an appeal to the Supreme Court.”

“We recognize that this may not be the end of this litigation,” Jenny Hoyle, a spokeswoman for the city of Chicago’s law department said, acknowledging the likelihood the NRA would seek further review. “We’re certainly prepared for that if this happens. We’re prepared to aggressively defend our ordinance.”

Second Amendment

Adopted in 1791 as part of the Bill of Rights, the Second Amendment reads in its entirety: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

In Heller, the high court struck down Washington’s 32-year- old gun law, which barred most residents of the city from owning handguns and required that all legal firearms be kept unloaded and either disassembled or under trigger lock. Six residents had challenged the law, saying they wanted firearms available in their homes for self-defense.

FULL STORY
http://www.bloomberg.com/apps/news?pid=20601087&sid=awIn1M4tWxi8&refer=worldwide

 

[AKElroy]

I can't believe I am typing these words, but I actually support DC statehood if it means closing the third circuits ridiculous read on this.

 

[benminer]

The Illinois Constitution states "Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be
infringed."

Can somebody explain what that first part means?

 

[PCGS65]

I'd like to know what the United States Constitution means? Evidently nothing.

 

[countertop]

Great news!!

COuldn't have asked for a better decision. Yahoooooooooooooooooooooo!!!!!!!!!!!!!

 

[TexasRifleman]

I'd think this one pretty much guarantees a Supreme showdown.

 

[Seminole]

Didn't the Heller decision pretty much ask for a case that would deal with incorporation? Here we go.

 

[Eightball]

[The] individual right to bear arms under the U.S. Constitution’s Second Amendment.......[doesn't] apply to states and municipalities.

This is the most retarded statement I've read in regards to Constitutionality in quite some time.

 

[M1A National Match]

This is the most retarded statement I've read in regards to Constitutionality in quite some time.

I expected nothing less from the die-hard, rabid anti-gunners. I swear to all that is Holy, that they breath different air.

 

[Deus Machina]

Agreed. Shouldn't something applied to the constitution of the US apply to everywhere in the US?

 

[PCGS65]

I expected nothing less from the die-hard, rabid anti-constitutionalists. I swear to all that is Holy, that they breath different air.

Fixed it for ya.

 

[kyo]

see this is a case of what is written and what they are interpreting. Given the power to interpret, they are idiots. They had to be bought off or something. Or they don't care cause they get to carry the guns

 

[akodo]

now wait a minute guys.

Here's the deal. When the 10 amendments in the bill of rights were drafted THEY WERE ONLY A CHECK ON FEDERAL POWER...STATES COULD IN THEORY CRAFT LAWS IN CONTRADICTION TO THE BILL OF RIGHTS, JUST THE FEDERAL GOVERNMENT COULD NOT.

Later, after the 14th amendment was added, there was a change in ideology. At that point, it was determined that in the name of Due Process, states should also be restricted by the Bill of Rights.

This concept is called "incorporation"

Most of the original 10 have been incorporated, but each one has required supreme court rulings.

But here is my big problem with it. Often lower courts will cite cases made in the 1880s where lower courts or even SCOTUS have specifically stated that the 2nd amendment doesn't apply to states...BUT IN THOSE SAME CASES THEY ALSO SAY THAT FREEDOM OF SPEECH, FREEDOM OF ASSEMBLY CAN ALSO BE FULLY IGNORED BY THE STATES.

To me, that's like convicting a guy of Rape and Murder...then 30 years later DNA evidence becomes common, samples are examined and lo and behold, it is someone else's DNA, so the Rape charges are dropped, but the Murder charge sticks around. Heck no, they throw out the entire thing!

Same here....if you have a court case that basically states 'It is okay for a State government to ban arms, ban speech, and ban free assembly' and then later SCOTUS rules the opposite way and says 'State Governements cannot ban speech', well then that entire original case should be ignored as far as 'precident' is concerned.

 

[#shooter]

Same here....if you have a court case that basically states 'It is okay for a State government to ban arms, ban speech, and ban free assembly' and then later SCOTUS rules the opposite way and says 'State Governements cannot ban speech', well then that entire original case should be ignored as far as 'precident' is concerned.

That would be Cruikshank v. U.S. and Presser v. Illinois which established this horrible precedent that the 2nd applies only to the Feds. The 14th (incorporation) has been used for the other 9 BOR in some form or another, but it hasn't got around to the 2nd until recently. What I don't get is if the 2nd applies only to the Fed- then shouldn't that mean all those Fed regs should go away? (I know interstate commerce, ) Those who want state bans though do not support loosening Fed regs- it seems at odds to me. You can't claim to want state bans yourself and Fed bans for other states.

 

[Moo 2 Drvr]

The wheels of justice grind slowly

This case will be in front of the Supreme Court this fall. The decision of the Court of Appeals in Chicago was expected by many given the precedents cited above.

Now there is a split among the circuits (9th circuit in favor of incorporation and the 2nd and 7th opposed). The Supreme Court is almost certain to address the split. A year from now, we should have our answer.

My bet is that the 2nd Amendment will be incorporated into the 14th amendment thereby restricting not only the federal government, but the states as well.

 

[DHJenkins]

This is good news; it basically guarantees that SCOTUS will finally have the entire 2A incorporation issue in front of them, rather than some some narrowly defined single case.

 

[daniel1113]

Agreed. Shouldn't something applied to the constitution of the US apply to everywhere in the US?

A basic understanding of Constitutional law would answer that question.

The Constitution is merely the document that limits the powers and privileges granted to the federal government. Nothing more. So, it does apply everywhere (in theory), but it only applies to the federal government.

Over the years, various court cases have incorporated parts of the Bill of Rights so that they also apply to state governments, but such extensions are not explicit in the Constitution.

You could argue all day whether or not this is how our federalist system should work, but it doesn't change the facts about how it was developed.

 

[ArmedBear]

The Constitution is merely the document that limits the powers and privileges granted to the federal government. Nothing more. So, it does apply everywhere (in theory), but it only applies to the federal government.

Over the years, various court cases have incorporated parts of the Bill of Rights so that they also apply to state governments, but such extensions are not explicit in the Constitution.

This has not been true since 1868.

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; nor deny to any person within its jurisdiction the equal protection of the laws.

This has been applied to every single "civil liberty" that appears in the Bill of Rights, with the exception of RKBA. One reason was the "collective right" lie that many judges used to justify any infringement on RKBA.

The Heller decision affirmed that RKBA is an individual right, which puts it on the same footing as the other "civil liberties" in the Bill of Rights and elsewhere.

There is no rational justification for why every such right would be incorporated, except for RKBA, other than the same one that was used in past decisions where the judges' desired outcome was to restrict the rights of non-whites. My view of these decisions has been affirmed by later SCOTUS decisions, legal scholarship from all sides, and scholarship in History.

There is no intellectually honest or textually justifiable way to incorporate every enumerated civil liberty, as well as some that are not even mentioned in the Constitution, under the 14th, except for the 2nd Amendment. The only reason to do this is because judges simply want a certain outcome -- just like segregationist judges, and worse, back in the post-Civil War era.

 

[ilbob]

The Illinois Constitution states "Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be
infringed."

Can somebody explain what that first part means?

The "police power" is the generalized power the state has to make laws and enforce order.

Basically the first phrase nullifies the second.

 

[ArmedBear]

Basically the first phrase nullifies the second.

Not entirely. It says, "only."

A reasonable interpretation of the first phrase would be that it was inserted so that it wouldn't be against the law for the police to disarm someone who was robbing a bank.

It would not be reasonable to assume that the authors of the Illinois Constitution meant to nullify their own words in the same sentence. I.e., if that's how it's being interpreted, then that's a flat-out lie by the judiciary (not a big surprise).

 

[Husker_Fan]

I get a kick out of some of the knee-jerk reactions here. The fact is two of the three judges on this panel are very conservative. They exercised judicial restaint when they likely wanted another result. This is what people should want in their judges.

The court said there is controlling precedent that says the 2A is not incorporated against the states. Heller was silent on that, and though they think SCOTUS might incorporate the 2A now, it is not the place of a lower court to reverse standing SCOTUS precedent.

You should thank these judges. They just created a circuit split on incorporation, which is the best way to see that SCOTUS addresses the question sooner rather than later.

 

[Husker_Fan]

ArmedBear,
Like it or not, selective incorporation has been applied in other areas. These include the requirement of a grand jury indictment and the right to a trial by jury. Also, I haven't seen any third amendment cases about incorporation

 

[ArmedBear]

This is what people should want in their judges.

No, it's not.

What people should want in their judges is for the judges to err on the side of constitutional and statutory limits on government.

Let decisions that give the benefit of the doubt to individual freedom be appealed to SCOTUS, if they are. Let the government fight for each power it wants to grab, don't force citizens to fight to regain each little right that is "guaranteed" but is taken from us.

Your version of "judicial restraint" in the lower courts does nothing but require multi-million-dollar cases to be taken all the way to the Supreme Court, in order to affirm every single right (not to mention the "conservative" notion of standing, which further restricts the ability to defend one's rights).

The result of this "restraint" is to allow arbitrary government power to be as strong as possible, and to make fighting it as difficult and expensive as possible.

This was hardly the intent of the Framers.

Like it or not, selective incorporation has been applied in other areas. These include the requirement of a grand jury indictment and the right to a trial by jury.

Unless there is some equivalent "substantive due process", which I understand there may be, there's also no intellectually honest way to incorporate some judicial procedures and not others.

 

[gbw]

Like it or not, selective incorporation has been applied in other areas. These include the requirement of a grand jury indictment and the right to a trial by jury. Also, I haven't seen any third amendment cases about incorporation

But bear in mind that in most of the other instances you cite, there are 'incorporated equivalents' available to the people for those rights not incorporated. So although it's true that they're actually not incorporated, as a practical matter the result for the citizens is the same as if they were.

The third amendment has to do with quartering soldiers in private homes, unlikely to become much of an issue in this day and age.

So the practical (and intended) effect is to leave the 2nd pretty much alone as unincorporated while hiding behind nonsense logic, which I realize more and more as I grow older is the lawyers true and only skill.

 

[chuckusaret]

I would have guessed it would pass. Chicago is the home, IMO, of the biggest idiot in the the US and the second biggest idiot comes from Delaware.