Writing on SCOTUSblog, a website that reports on Supreme Court activities, Lyle Denniston said:
“On a pace that very likely will put them in the Supreme Court at its next term, three significant test cases on the scope of the Second Amendment — the “gun rights” Amendment — are moving along in the lower courts. Briefing on the core question of whether state and local governments must obey the Amendment — and thus allow private ownership of handguns, for example — will be completed in the Seventh Circuit Court by mid-March. Argument and a decision by summer appear likely.
The three cases were filed swiftly after the Supreme Court, late last June, declared for the first time that the “right to keep and bear arms” is a personal, individual right — at least to have a gun in one’s own home for self-defense (District of Columbia v. Heller, 07-290). The Justices, however, did not then settle whether the Amendment applies to state and local governments, as well as the federal government amd the District of Columbia.
The sequel cases tested handgun bans or controls in the cities of Chicago and Oak Park, Ill., a Chicago suburb. (A California case that also had been filed promptly has been settled.) The Illinois cases were narrowed to the core question of whether the Amendment applied to the states. Consolidated, the cases were decided Dec. 4 by Senior U.S. District Judge Milton I. Shadur of Chicago.
Judge Shadur ruled against the gun control challengers, concluding that he was bound by a 1982 Seventh Circuit ruling that the Second Amendment did not apply to the states. (The Circuit ruling was in Quilici v. Village of Morton Grove — a case that the Supreme Court refused to hear in 1983.)
“Our Court of Appeals,” Shadur wrote, “has squarely upheld the constitutionality of a ban on handguns a quarter century ago,” and did so by relying upon an 1886 Supreme Court precedent (Presser v. Illinois) to hold that the Amendment only applied to the national government.
The three cases moved on to the Seventh Circuit in separate appeals, but they have been consolidated there (dockets 08-4141, 08-4243, 08-4244). The National Rifle Association and other challenges to the Chicago and Oak Park gun laws filed their merits briefs on Jan. 28. The local governments’ briefs are due Feb. 27, with a final joint reply brief due March 13.
The briefs by the NRA and others seeking to curb state and local controls on guns are studied efforts to get around the Supreme Court’s 1886 Presser decision. They argue that the Presser ruling either did not decide the issue of applying the Second Amendment to the states (because the notion of “incorporating” the Bill of Rights so that they applied to the states through the Fourteenth Amendment had not yet existed at the time), or that it is outdated and essentially overturned by modern Supreme Court precedent.
The NRA makes the bolder argument on this point, suggesting that any specifically mentioned in the Bill of Rights necessarily applies to the states through the Fourteenth Amendment. But the other challengers contend that, at least the Second Amendment right to keep and bear arms has been incorporated to apply to the states. The two groups either rely on the Fourteenth Amendment’s Due Process Clause, or its Privileges and Immunities Clause, as the basis for the absorption of gun rights against state and local governments.
The two groups also make an argument that failure to extend gun rights to individuals, for their own self-defense and other personal uses of guns, discriminates against them when others are allowed to have guns (an Equal Protection argument).
(The NRA’s merits brief can be found as docket entry 9 in the Seventh Circuit’s file on 08-4241 (and 08-4243), and the other challengers’ brief is docket entry 11 in the Circuit file on 08-4244.)
