National Rifle Association of America v. City of Chicago

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.

via Balkinization.

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.” (alt​house​.blogspot​.com)