Federal Court Says States Can Regulate Guns

[Paslode]

http://online.wsj.com/article/SB1243...843379259.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]

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.

[Pete]

Originally Posted by rubberneck

.... If states aren't bound by the second amendment .......

Then they aren't bound by any of them.

[Paslode]

Originally Posted by Pete

Then they aren't bound by any of them.

Very true! And that would open a BIG can of worms..

[Gypsy]

Originally Posted by Pete

Then they aren't bound by any of them.

And there you have it.

[Richard]

Haven't the states always 'regulated' firearms (e.g., registration, restrictions of automatic weapons, etc) within the purview of their individual jurisdictions?

Richard's $.02

[Paslode]

Originally Posted by Richard

Haven't the states always 'regulated' firearms (e.g., registration, restrictions of automatic weapons, etc) within the purview of their individual jurisdictions?

Richard's $.02

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]

Originally Posted by Richard

Haven't the states always 'regulated' firearms (e.g., registration, restrictions of automatic weapons, etc) within the purview of their individual jurisdictions?

Richard's $.02

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.

[Penn]

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]

Originally Posted by Penn

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.

Yeah, I mean him.