By Sam Singer
For Second Amendment advocates, Christmas came in June last year with the Supreme Court’s delivery of a historic gun rights victory in the form of District of Columbia v. Heller. Not only did the Court strike down Washington’s ban on handguns, but it did so by reading into the Second Amendment an individual right to possess firearms for private use. After the decision came down, rejuvenated NRA lawyers fanned out in search of municipalities with similar firearm bans. They found one in Chicago, which mirrored Washington in its prohibition of handguns and automatic weapons within city limits.
The NRA would soon learn that where the Second Amendment is concerned, Chicago has one critical advantage over the District of Columbia: It’s a city. Because Washington is a federal enclave, the Supreme Court could apply its new and robust interpretation of the Second Amendment without passing upon the more controversial matter of the doctrine’s applicability to state and municipal law. As the Seventh Circuit observed this week when it dismissed a similar challenge to Chicago’s handgun ban, the Second Amendment’s scope doesn’t extend beyond federal action. Writing for the Court, Judge Easterbrook held that until the Supreme Court provides otherwise, the scope of the Second Amendment is plain, and lower courts have no business subjecting local gun laws to constitutional scrutiny.
Had I not spent the better part of my day thumbing through NRA policy papers, I’d be tempted to tee up a thematic trope like Chicago “dodged a bullet” here, but I’ve just about had it with firearm metaphors. Plus, to conclude the city dodged this challenge would be to ignore the high probability that it will resurface again, this time before the Supreme Court.
The Seventh Circuit is the third federal appeals court to weigh in on the matter. The other two, the Second and Ninth Circuits, reached opposite conclusions. The sticking point between the circuits, and the issue experts expect the Supreme Court to take up on appeal, is whether the Second Amendment’s protections should be expanded to govern firearm restrictions at the state and local levels. In support of expansion, Second Amendment advocates question the wisdom of “selective incorporation,” the Supreme Court’s time-honored practice of picking and choosing which constitutional liberties extend against the states. They find incongruity in a constitutional system that restricts a city’s ability to withhold welfare payments, but permits the same city to criminalize the possession of firearms. If the framers didn’t elevate one fundamental liberty over another, why does the Supreme Court?
The answer, without tunneling too far into constitutional history, is because it can. Since the ratification of the Fourteenth Amendment, the Court has rebuffed calls to apply the Bill of Rights to the states en masse, opting to approach incorporation with an eye-dropper instead of a bucket.
The Court’s position on the proper scope of the Second Amendment defies estimation. The issue sits at the intersection of two of the conservative wing’s ideological fault lines. Principally at issue is the continued relevance of the Heller decision, a trophy of the Court’s 2008 term. But even after rescuing it from obscurity, the Court can’t expand the scope of the Second Amendment without dramatically encroaching on state sovereignty, a result the Court’s conservative justices will avoid at most costs. Which begs the question: What are they charging for state sovereignty these days?
–
Sam Singer is the Beachwood’s legal correspondent. He welcomes your comments.
–
Previously by Sam Singer:
* Is TARP legal? Court to decide on laugh test.
* Taking Government Out Of The Marriage Business. Separating church and state.
* Chicago’s Disorderly Conduct. Dissent allowed even in Daleyland
* Why Google Will Win. Newspapers are on the wrong side of the digital revolution.
* Is Blago A Flight Risk? We asked; a judge said yes.
* Obama’s Torture Test. Politically calculating.
* Replacing Souter. Signs point to Kagan.
* Going to Pot. The states vs. the feds.
* The Sotomayor Show. A guide for viewers.
Posted on June 5, 2009