Sandy Levison recommends reading a recent 7th Circuit decision:
Anyone interested in seeing how a very smart judge can write the equivalent of a treatise in nine pages should read Frank Easterbrook’s opinion in National Rifle Association of America v. City of Chicago. It is a truly remarkable performance.
The case was focused on whether Heller – a recent Supreme Court case striking down restrictions on gun possession in D.C. (a federal territory) – could be applied to state law:
The ostensible (and actual) issue before the Court (a pane of Easterbrook, Posner, and Bauer) is whether Heller should be read as incorporating the Second Amendment against states (or, in this case, the City of Chicago). One Circuit, the Second, has held no, in an opinion joined by Judge Sotomayor. Another, the Ninth, did hold that the Second Amendment was incorporated.
The Seventh Circuit rejected the NRA argument, and said the Second Amendment does not apply to state law. Grounding his argument in 19th-century precedent, Easterbrook wrote that, unless the Supreme Court says otherwise, even modern case law says lower courts must follow the Supreme Court:
Repeatedly, in decisions that no one thinks fossilized, the Justices have directed trial and appellate judges to implement the Supreme Court’s holdings even if the reasoning in later opinions has undermined their rationale.
Further responding to the NRA’s argument that older cases did not directly address new arguments they were now making, Easterbrook said:
If a court of appeals could disregard a decision of the Supreme Court by identifying, and accepting, one or another contention not expressly addressed by the Justices, the Court’s decisions could be circumvented with ease. They would bind only judges too dim-witted to come up with a novel argument.
Another interesting NRA argument looked back to the famous Blackstone treatise, a foundational legal text describing English law – the underpinnings of the American common law:
[The NRA’s] reliance on William Blackstone, 1 Commentaries on the Laws of England *123–24, for the proposition that the right to keep and bear arms is “deeply rooted” not only slights the fact that Blackstone was discussing the law of another nation but also overlooks the reality that Blackstone discussed arms-bearing as a political rather than a constitutional right. The United Kingdom does not have a constitution that prevents Parliament and the Queen from matching laws to current social and economic circumstances, as the people and their representatives understand them. It is dangerous to rely on Blackstone (or for that matter modern European laws banning handguns) to show the meaning of a constitutional amendment that this nation adopted in 1868. See Nicholas Quinn Rosenkranz, Condorcet and the Constitution, 59 Stan. L. Rev. 1281 (2007).
He approaches the end with a nod to liberarian ideals (even citing Robert Nozick) and the importance of state’s rights:
But the municipalities can, and do, stress another of the themes in the debate over incorporation of the Bill of Rights: That the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule. . . . Crist v. Bretz, 437 U.S. 28, 40–53 (1978) (Powell, J., dissenting) (arguing that only “fundamental” liberties should be incorporated, and that even for incorporated amendments the state and federal rules may differ); Robert Nozick, Anarchy, State, and Utopia (1974).
His final point puts federalism and the Supreme Court first:
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.
I’m not sure I completely agree with all the public-policy implications, although the opinion is quite convincing and very well done. I recommend you read it, along with Sandy Levinson’s more complete analysis.
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- “Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon.” (althouse.blogspot.com)