View Full Version : Federal Court Says States Can Regulate Guns
http://online.wsj.com/article/SB124398585843379259.html]http://online.wsj.com/article/SB124398585843379259.html
The Wall Street Journal
JUNE 3, 2009, 3:08 A.M. ET
Federal Court Says States Can Regulate Guns
By JESS BRAVIN
A federal appeals court in Chicago ruled today that the Second Amendment doesn't bar state or local governments from regulating guns, adopting the same position that Judge Sonia Sotomayor, President Barack Obama's nominee to the Supreme Court, did when faced with the same question earlier this year.
Last year, the U.S. Supreme Court cited the Second Amendment to strike down a handgun ban adopted in 1976 by the Washington, D.C., City Council. The court, by a 5-4 vote, found that the amendment protected from federal infringement an individual right to "keep and bear arms."
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The decision applied only to the District of Columbia, a federal enclave that is not a state. It left open whether the amendment also limits the powers of state government.
A string of 19th century Supreme Court decisions limited application of the Bill of Rights to state governments. During the 20th century, the Supreme Court held that certain constitutional rights, but not the Second Amendment, could be enforced against the states.
Gun-rights groups challenged ordinances in Chicago and Oak Park, Ill., as unconstitutional in light of the Supreme Court's decision last year. A federal district judge rejected their arguments, a decision affirmed Tuesday by the Seventh U.S. Circuit Court of Appeals.
Writing for a three-judge panel, Judge Frank Easterbrook observed that an 1886 Supreme Court decision limited the Second Amendment to the federal government. While that decision might be a "fossil," the lower courts have no power to overrule a Supreme Court opinion even if they suspect the high court may be inclined to do so itself. It was "hard to predict" what the Supreme Court would do should it consider the question in future, Judge Easterbrook wrote.
Judge Easterbrook and the two other Seventh Circuit judges were all appointed by Republican presidents. Judge Easterbrook wrote that they agreed with an unsigned Second Circuit opinion that in January rejected a Second Amendment challenge to a New York state law barring possession of nunchuka sticks, a martial arts weapon. That panel, in New York, included Judge Sotomayor and two other judges appointed by President Bill Clinton.
In San Francisco, however, a Ninth Circuit panel earlier this year held that the Second Amendment applies to state governments, even as it upheld a local ordinance banning guns from county property. One judge was appointed by a Republican president, the other two by Democrats.
Were they to follow the Ninth Circuit's reasoning, Supreme Court "decisions could be circumvented with ease," Judge Easterbrook wrote. "They would bind only judges too dim-witted to come up with a novel argument."
The split among the circuits increases the likelihood that the Supreme Court will step in decide the Second Amendment's application to state weapons laws.
If confirmed to the Supreme Court, Judge Sotomayor would not be bound by prior high court decisions and could provide her own analysis of the Second Amendment's application.
Write to Jess Bravin at jess.bravin@wsj.com
rubberneck
06-03-2009, 07:44
Now that two different appeals courts have issued rulings that are at odds with each other it seems like the SCOTUS cannot duck the issue any longer. If states aren't bound by the second amendment than it all but guts the meaning of the right as defined by the Court in Heller. This is a fight we want to have now when we still have a majority of the court on our side.
.... If states aren't bound by the second amendment .......
Then they aren't bound by any of them.
Then they aren't bound by any of them.
Very true! And that would open a BIG can of worms..
Then they aren't bound by any of them.
And there you have it.
Haven't the states always 'regulated' firearms (e.g., registration, restrictions of automatic weapons, etc) within the purview of their individual jurisdictions? :confused:
Richard's $.02 :munchin
Haven't the states always 'regulated' firearms (e.g., registration, restrictions of automatic weapons, etc) within the purview of their individual jurisdictions? :confused:
Richard's $.02 :munchin
I would say yes, no and it is confusing. While the States do regulate and restrict firearms there always seems to be the issue of what rights We the People actually do have in regards to firearms and who decides seems in limbo.
An example would be my State says I can own a EBR or NFA, then the Feds put forth a AWB. So does that mean I can own a EBR only if the Feds say it is legal, or can the States side step that???
Or like when my city banned EBR's and the State told them they couldn't do that because State Law trumped City Law?
So who trumps who?
rubberneck
06-03-2009, 18:47
Haven't the states always 'regulated' firearms (e.g., registration, restrictions of automatic weapons, etc) within the purview of their individual jurisdictions? :confused:
Richard's $.02 :munchin
I am not a lawyer but from what I understand that if the 2nd amendment was incorporated to the states that they could still regulate firearms but they will have to meet a much more demanding standard to do so. I don't see how the court could decide to not incorporate the 2nd amendment without gutting their own decision in Heller.
I was of the opinion that the Bill of Rights was for individual citizens.
From the National Archives:
http://www.archives.gov/exhibits/charters/bill_of_rights.html
They demanded a "bill of rights" that would spell out the immunities of individual citizens.
Several state conventions in their formal ratification of the Constitution asked for such amendments; others ratified the Constitution with the understanding that the amendments would be offered.
“A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inferences”-Thomas Jefferson
It seems plain to me that we as Americans have inalienable rights and they are spelled out in the first 10 Amendments of the Constitution.
greenberetTFS
06-04-2009, 16:22
I am not a lawyer but from what I understand that if the 2nd amendment was incorporated to the states that they could still regulate firearms but they will have to meet a much more demanding standard to do so. I don't see how the court could decide to not incorporate the 2nd amendment without gutting their own decision in Heller.
I haven't seen any of our most learned lawyers on this forum help us sort this out...RL is it still to early in CA to get on this for us? :)
GB TFS :munchin
So if the constitution doesn't apply to states, where does it apply? It's kind of hard to be in the United States without being in one.
It's kind of hard to be in the United States without being in one.
Not if you live on Pirate Island - the vacuum we call the District of Columbia. ;)
Richard's $.02 :munchin
greenberetTFS
06-04-2009, 17:07
Not if you live in the vacuum of the District of Columbia. ;)
Richard's $.02 :munchin
Richard,
I was just sitting here patiently waiting for you to nail him on that one ............. ;)
GB TFS :munchin
Aoresteen
06-04-2009, 19:47
Has the NRA decided to apeal the decision?
I think what you are really discussing is Federalism vs States rights. As I understand it, federalism is part of the elementary system of check and balance that characterize the inherent compromise available to our form of government. It acts as a security valve, by helping to determine any deviation and correct for errors, to change and advance the social issues of any given time period. That’s what American federalism is all about imho. Being so, it also allow (I think) the federal gov’t to pass off issues to the states to settle first, as experiments in democracy so to speak, then If I understand this correctly, when it reaches a point where states rights infringe, or exclude constitutional rights then the Federal court addresses the infrigement questions and constitutional issues.
Sigaba more than likely can answer this much better than I.
Sigaba more than likely can answer this much better than I.
Chef--
Thank you but on such matters I defer to the QP who has me changing my plans for the next several hours and has me sorting through boxes of books when I notice that he might be reading one of my posts.:eek: ;)
Yeah, I mean him (http://www.professionalsoldiers.com/forums/member.php?u=634).
armymom1228
06-04-2009, 22:32
Has the NRA decided to apeal the decision?
Yes. The email I recieved today is below.
NRA Appeals Seventh Circuit Ruling to the U.S. Supreme Court
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-
Not if you live on Pirate Island - the vacuum we call the District of Columbia. ;)
Richard's $.02 :munchin
I stand corrected! :D
The opinion is available here (http://www.ca7.uscourts.gov/tmp/O31FFV7A.pdf). (The link to the WSJ article does not work. The revised link to the WSJ article has a link to the ruling that does not work.)
The ruling seems* to say:
(a) on GP alone the Seventh Circuit Court of Appeals is not going to go against established rulings of the Supreme Court even if the established rulings are inconsistent or contradictory or 'fossilized', and
(b) even if the Seventh Circuit Court of Appeals were inclined to over-ride the Supreme Court, it would not do so in this case because:
(i) the plaintiffs offer a flawed argument (part of the rebuttal is reminiscent of QP Razor's point here (http://www.professionalsoldiers.com/forums/showpost.php?p=268225&postcount=91), see p. 6),
(ii) a municipality regulating what weapons may or may not be used is an example of federalism, and
(iii) "Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon" (p. 9).
In its analysis of the NRA's argument, the opinion is almost cruel in its rhetoric.:eek:
In reference to Rubberneck's point, the court is siding with other opinions that Heller is about the authority of the national government while this case and others are about the authority of the states.
In reference to Penn's point, it seems that the decision is saying that states' rights exist as a manifestation of federalism, not in opposition to (versus) federalism.
Interesting reads on the recent past and future present, of the organic arugment of Federalism, as it applies to contemporary issues.
Martha Derthick wrote this short essay in 1996
http://www.urban.org/UploadedPDF/derthick.pdf
“The place of place, for example, is much attenuated in American politics and government. Consider, if nothing else, the fact that two of nine Supreme Court justices, Rehnquist and O’Connor, are from Arizona, and that President Clinton contemplated appointing a third person from that state, Bruce Babbitt, without anyone’s objecting to him on geographic grounds. The time is long gone when high appointive offices—the cabinet, the Court—were allocated to states or regions. Geography has yielded to gender and race.”
Additionally her Book “Keeping the Compound Republic” 2001
Overview below; seems to be on point
http://www.brookings.edu/press/Books/2001/compound_republic.aspx
armymom1228
06-05-2009, 09:19
With reference to the states doing thier own thing.
NASHVILLE, Tenn. – Handguns will soon be allowed in bars and restaurants in Tennessee under a new law passed by state legislators who voted to override the governor's veto.
The legislation that takes effect July 14 retains an existing ban on consuming alcohol while carrying a handgun, and restaurant owners can still opt to ban weapons from their establishments.
Thirty-seven other states have similar laws.
The state Senate voted 21-9 on Thursday against Democratic Gov. Phil Bredesen's veto, a day after the House also voted 69-27 to override.
They overrode critics, including Bredesen, who said it's a bad idea to have guns and alcohol in close proximity.
Democratic Sen. Doug Jackson, the main sponsor of the bill, said state Safety Department records show handgun permit holders in Tennessee are responsible.
Of the roughly 218,000 handgun permit holders in Tennessee, 278 had their permits revoked last year, records show. Since 2005, state records shows nearly 1,200 people have lost their permits.
Revocations are issued for felony convictions, while permits can be suspended for pending criminal charges or for court orders of protection.
Sen. Andy Berke, D-Chattanooga, was the only senator to speak against overriding the veto Thursday.
"I believe that we should follow the governor and rethink what we have done," he said.
The law, which was supported by the National Rifle Association, has been successful in other states, its chief lobbyist said.
"Of those 37 states, not one state has attempted to repeal or amend those statutes because they've been successful," Chris Cox said.
Bredesen spokeswoman Lydia Lenker said after Wednesday's House vote that the Democratic governor expected an override when he vetoed the legislation last week.
Following Thursday's Senate vote, Bredesen, who is a gun owner and hunter, reiterated his stance to reporters.
"I still think I'm right," he said. "I still think that guns in bars is a very bad idea. It's an invitation to a disaster."
___
Read HB0962 at: http://www.capitol.tn.gov
was on yahoo news 6/5/09 url is sorta long.. can provide it anyone wants.
"I still think I'm right," he said. "I still think that guns in bars is a very bad idea. It's an invitation to a disaster."
Sounds as if he's using the same line of reasoning which has made it so difficult to find a pub in Scotland nowadays which will allow you to play darts. ;)
Richard's $.02 :munchin
Following Thursday's Senate vote, Bredesen, who is a gun owner and hunter, reiterated his stance to reporters.
"I still think I'm right," he said. "I still think that guns in bars is a very bad idea. It's an invitation to a disaster."
Thank God nothing disasterous ever occurs because of the alcohol consumption encouraged and supported in these same bars. :rolleyes:
The Reaper
06-05-2009, 16:34
Beware the man in the bar who is drinking water.
TR
Defender968
06-05-2009, 17:13
The reality is that there have been guns in bars for years, all be it in small numbers by a certain demographic, specifically off duty LEO's. I can speak from personal experience that many of my LEO buddies carried when they went out off duty for a night on the town. The thought process is that they don't want to be out having a good time and run into a "client" unarmed, even if they're consuming alcohol. I don't for a second think that it's new to my generation of LEO.
Does that mean that Joe Q Public should carry in a bar, well that's up for debate in my mind, if I were carrying in a bar where I was consuming alcohol, I would be on my best behavior and wouldn't draw my weapon unless I absolutely had to, and even then the liability would be astronomical, but as I and many of my fellow LOE's have and do say, I'd rather be judged by 12 than carried by 6.
Just my .02