It took less than a week, but the 7th Circuit has passed down their judgement in National Rifle Association of America v. City of Chicago [pdf]. They disagree with Nordyke and find that the 14th Amendment does not incorporate the 2nd Amendment against state and local governments.
I fully expected this. What I didn’t expect was for the 7th to so gleefully and eagerly hand the ball off to the Supreme Court, which is what they’re doing here.
Presiding Judge Easterbrook argues,
Cruikshank, Presser, and Miller rejected arguments that depended on the privileges and immunities clause of the fourteenth amendment. The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), holds that the privileges and immunities clause does not apply the Bill of Rights, en bloc, to the states. [p. 2]
There’s just one little problem with that logic: this isn’t about the privileges and immunities clause, and it never was. Nordyke found incorporation through the due process clause, the same clause under which all other civil rights have been incorporated.
Interesting that the due process clause is never mentioned in Easterbrook’s opinion. Very interesting.
Predictably agreeing with Maloney, they claim that,
Anyone who doubts that Cruikshank, Presser, and Miller have “direct application in [this] case” need only read footnote 23 in Heller. It says that Presser and Miller “reaffirmed [Cruikshank’s holding] that the Second Amendment applies only to the Federal Government.” [p. 4]
However, they omit the text immediately preceding that quote, which reads:
With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. [DC v. Heller, p. 51, footnote 23]
Cruikshank is defective and poorly-reasoned, and although the 7th sidesteps saying so, they remand the idea of reversing it to a higher court. Miller was implied to be “deficient” in the oral arguments in Heller. In fact, they seem to have no illusions that this case will be appealed:
The prevailing approach is one of “selective incorporation.” Thus far neither the third nor the seventh amendment has been applied to the states–nor has the grand jury clause of the fifth amendment or the excessive bail clause of the eighth. How the second amendment will fare under the Court’s selective (and subjective) approach to incorporation is hard to predict. [p. 5]
The other prong of the 7th Circuit reasoning is that top-down incorporation will somehow violate the policies of Federalism:
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 rights may take a different shape when asserted against a state than against the national government. [p. 7]
Of course, neither the Constitution or the Bill of Rights “create” rights; they simply protect pre-existing rights, the right to keep and bear arms being one of those. The due process clause of the 14th Amendment didn’t step on states’ rights to self-determination; it simply ensures that certain, enumerated rights of individual citizens are preserved.
Continuing in this vein, the 7th Circuit concludes:
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. [p. 9]
Not so sure about that argument, but I’ll be honest: I think Easterbrook’s up to something here. He’s an independent thinker, and his opinions are lively and well-written (notice the repeated usage of “fossil” to describe outdated caselaw). He was a Reagan appointee, and I don’t imagine his decision is one of political and/or cultural pressure.
The plain fact is, the 7th Circuit as a whole was in an untenable position here. They passed a ruing guaranteed not to make waves, but with the full and obvious understanding that it would be going to the Supreme Court no matter what.
So, to sum up, they’ve sent it up the pipe, completely ignoring the due process clause, and making sure to add an admonishment not to forget the notion of Federalism altogether. They were given a hot potato, and they passed it along without hesitation. Can’t argue with that.
Postnote: another case used as precedent here is Presser v. Illinois, decided in 1868. Gun control advocates have long claimed that Presser disavows the notion of the 2nd Amendment as an individual right, or failing there, that it does not incorporate it against the states. This is incorrect.
Presser v. Illinois only held that the Lehr und Wehr Verein could not march down city streets with rifles, it did not address the 2nd Amendment and individual rights. One case regarding a particular group of angry marching Lutherans (“angry Lutherans” being something of a dichotomy) doesn’t make for national policy, nor does it have the long-reaching repercussions many attribute to it.