NRA Appeals Seventh Circuit Ruling to the U.S. Supreme Court

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Michael Thomson

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http://www.nraila.org/News/Read/NewsReleases.aspx?ID=12549

Wednesday, June 03, 2009

Fairfax, Va. – Today, the National Rifle Association filed a petition for certiorari to the U.S. Supreme Court in the case of NRA v. Chicago. The NRA strongly disagrees with yesterday's decision issued by a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, holding that the Second Amendment does not apply to state and local governments.

“The Seventh Circuit got it wrong. As the Supreme Court said in last year's landmark Heller decision, the Second Amendment is an individual right that ‘belongs to all Americans'. Therefore, we are taking our case to the highest court in the land,” said Chris W. Cox, NRA chief lobbyist. “The Seventh Circuit claimed it was bound by precedent from previous decisions. However, it should have followed the lead of the recent Ninth Circuit Court of Appeals decision in Nordyke v. Alameda County, which found that those cases don't prevent the Second Amendment from applying to the states through the due process clause of the Fourteenth Amendment.”

This Seventh Circuit opinion upholds current bans on the possession of handguns in Chicago and Oak Park, Illinois.

“It is wrong that the residents of Chicago and Oak Park continue to have their Second Amendment rights denied,” Cox concluded. “It’s time for the fundamental right of self-defense to be respected by every jurisdiction throughout our country.”

-NRA-

Established in 1871, the National Rifle Association is America’s oldest civil rights and sportsmen's group. Four million members strong, NRA continues its mission to uphold Second Amendment rights and to advocate enforcement of existing laws against violent offenders to reduce crime. The Association remains the nation's leader in firearm education and training for law-abiding gun owners, law enforcement and the military.
 
Everyone pray really hard that Scalia, Alito, Kennedy, Roberts, and Thomas remain on the bench and in good health.
 
You can probably guran-darn-tee Stevens, Ginsburg, Breyer, and Sotomayor are no friends of constitutional incorporation on this issue. Then again, maybe one of them will surprise us.

The NRA must have reason for optimism, though, or they wouldn't have pursued this case. They hate losing.
 
Don't hold your breath guys. We can only lose here. Yes that's right, if the SC upholds the 7th ruling we're screwed.
If they uphold the 2nd amendment we will feel like we've won. That's the problem. When we're granted the priviledge of the 2A instead of the right we feel like it's a victory. When none of this should of happened in the first place.
All these rouge anticonstitutionalist justices,lawmakers ect should be punished for treason.......
 
Don't hold your breath guys. We can only lose here. Yes that's right, if the SC upholds the 7th ruling we're screwed.
If they uphold the 2nd amendment we will feel like we've won. That's the problem. When we're granted the priviledge of the 2A instead of the right we feel like it's a victory. When none of this should of happened in the first place.
All these rouge anticonstitutionalist justices,lawmakers ect should be punished for treason.......

What are you babbling about ?

The SC has ALREADY stated that 2A is an individual right, the 7th's ruling is in direct opposition to that as well as the 9th's ruling.

The question is wholly moot.

The issues that will be addressed at the SC, as was already stated in Heller are

1. Does 2A need to be incorporated, Yes or No.

The answer can only be Yes as there is a plain split between multiple circuits which has to be resolved. This is a central task of the SC and cannot be ignored or brushed off.

The SC MAY decide to hold off on granting cert on this at this time to see what else comes from the other circuits. Since 30% of the circuits have come up with 3 individual different answers (2A is incorporated [9th], 2A isn't [2nd], "We don't want to answer but think not" [7th] ) this is unlikely but possible.

For example, look at the state makeup of the remaining circuits

1st ME, NH, MA, RI................................50-50 split, probably akin to the 7th
3rd PE, NJ, DE, MD................................May be a 7th, may be a 2nd to close to call
4th WV, VA, NC, SC...............................Incorporated
5th TX, LA, MS.......................................Incorporated
6th MI, OH, KY, TN.................................Incorporated
8th NE, ND, SD, MN, IA, MO, AR.............Incorporated
10th WY, UT, CO, NM, KS, OK..................Incorporated

2. What level of scrutiny is to be applied to a fundamental constitutional right

The SC in Heller specifically mentioned scrutiny as well as questioning whether it should have the identical level as the other BoR amendments or an amended one tailored to 2A.

THIS is the primary area of concern

As for "All these rouge anticonstitutionalist justices,lawmakers ect should be punished for treason......." :banghead:
 
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It's a brand new filing, so it isn't on the court's online docket. For future reference, however, here is the link to the SCT's docket site.
 
In Heller, The U.S. Supreme Court found that the "right to keep and bear arms" was an individual right, and that because of it Washington D.C.'s local ordinance banning the possession of firearms (specifically handguns that were outright banned) in private homes, or requiring them to be made inoperable was unconstitutional. They also ruled that some laws restricting the carrying of arms outside of the home, or possession by certain classes of people (felons, mental incompetents, minors, etc) were permissible under some circumstances – but they didn’t define what such circumstances might be.

The challenge being made here is that the Chicago ordnance is almost identical to the one found to be unconstitutional in Washington D.C., and both are (or were) local ordinances, as the one in Washington was enacted by the city’s government and not by Congress. Both apply to possession of firearms (particularly handguns) in private homes.

If they don’t duck the case, they will have a hard time explaining why the residents of Chicago have to suffer restraints that are unconstitutional in Washington, but this isn’t to say they won’t find a way to do it.
 
A bit of a Supreme Court procedural trivia question...

The NRA petition is filed by Halbrook and is based on NRA v Chicago and NRA v Oak Park.

Since the 7th Circuit decision was based on the combination of three cases, can Gura file a separate petition for McDonald v Chicago?

If two (or three, depending on how you count them) separate petitions are filed, can the Supreme Court pick one of the petitions or combine the petitions and treat them as one (as the District and Circuit Courts did)?

The reason for my curiousity is that Gura seemed to have a tighter, narrower case than Halbrook's, Gura sounded better than Halbrook during the 7th Circuit oral arguments, and Gura obviously won Heller.
 
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If they don’t duck the case, they will have a hard time explaining why the residents of Chicago have to suffer restraints that are unconstitutional in Washington, but this isn’t to say they won’t find a way to do it.
Click to expand...

Old Fuff, I think we will finally win. After all these years, the entire USA will finally have to live with a ruling like Heller. :)
 
Old Fuff, I think we will finally win. After all these years, the entire USA will finally have to live with a ruling like Heller.
Click to expand...

I hope so. But it will depend on the make-up of the Court when the time comes to decide. :uhoh:
 
I don't understand why they would want to take up the Seventh Circuit ruling to the Supreme Court. Wouldn't you want to take up the Second Circuit ruling because Sotomayor would have to recuse herself, thus making it harder to get a non-incorporating majority?

Also, I found the federalism argument in the Seventh Circuit opinion interesting (that the federal constitution should control the states). It is like they are trying to convince Scalia and company that the second amendment should not be binding on the states.

Blonde
 
The second circuit case doesn't directly deal with handguns in the home for the purposes of self defence, which is what the Heller case was about & the Chicago case.

Basically they are trying to present the same case to the same justices and ask them to give the same ruling, thereby incorporating the second as a restriction on the states. They are also asking for a level of scrutiny required for gun control laws to be constitutional.

Later cases will test the limits of what is acceptable to the courts as a non prohibitable class of weapons (nunchucks? short barreled rifles? etc, etc. ) The level of scrutiny required will greatly effect the abilty of states to prohibit certain classes of weapon.

The second circuit case would ask the justices to rule on a completely different class of weapons, not something Gura or the NRA want at this point. The step they are after is a guarantee of a right to own handguns in the home that overrides the states. Nunchucks are a side issue, even if the principle is the same.
 
Regarding the 7th Circuit and 2nd Circuit cases being appealed to the Supreme Court, the underlying law being challenged really is irrelevant at this point. If the Supreme Court holds that the 2nd Amendment is incorporated it will very likely remand those cases back to the respective appellate courts to determine whether the applicable laws are constitutional, because that analysis was never undertaken by those appellate courts.

Conversely, if the 9th Circuit case is appealed, the Supreme Court would take a look at the challenged ordinance because the 9th Circuit already performed the analysis.
 
I'm rooting for Chicago

to be the one granted cert.

It's exactly the same case as Heller, just filed in a different jurisdiction, so it brings in the incorporation argument that couldn't be brought in DC, as it's a Federal enclave.

As was posted earlier, it would take some pretty severe logical gymnastics to demonstrate that the citizens of the United States who happen to live in DC have rights that their fellow citizens, all equal before the law, who live in other places, do not have.

Granted, counting angels on the heads of pins and splitting babies are required courses in law schools, and the difficulty of same is why lawyers drive the cars they do, but still... it's a tough case to make.

I likewise hope that the nasty racist underpinnings of Slaughterhouse can be made into substantive issues before the Court. I'd bet that Stevens and Breyer, as well as the moderates, would love to see that vile precedent overturned, even though it would negatively affect (from their perspective) one issue (gun rights). There's a whole realm of liberal and center-left thought that is foreclosed by the perverse Slaughterhouse ruling, and the obvious racism of the decision (it's OK to kill black people if state law doesn't prohibit it) makes overturning it very appealing to that cohort.

A fully-applied 14th Amendment would be a very, very good thing for Constitutional jurisprudence, even though both Left and Right might not like some of it's particular consequences. There's enough in there that would appeal to both to make a majority for overturning an easy get.

Or so it seems to me.

--Shannon
 
Heller can possibly be limited in this context

Heller came out of D.C., which isn't a state. It is possible to be protected from infringement of a right by the federal government but not by a state government (and vice versa, in that state). That's what the incorporation issue is all about. Nevertheless, I have no idea why the 2nd Amendment would be treated differently from the other rights in the Bill of Rights.
 
The second circuit case would ask the justices to rule on a completely different class of weapons, not something Gura or the NRA want at this point. The step they are after is a guarantee of a right to own handguns in the home that overrides the states. Nunchucks are a side issue, even if the principle is the same
Click to expand...

That is the brilliance of taking up Nunchucks, the question presented will be the same or broader: “Does a United States citizen have the right to defend their home with the weapon of their choice, regardless of state laws the contrary?”

Nunchucks is about the right to choose :neener:, not the right to possess.

Remember all the problems with gun registrations in DC after Heller. The DC city council attempted to ban all weapons except Dick Heller’s .22 revolver under their expanded definition of a machine gun. Congress stepped up and DC backed down in that situation. However, it is a real concern going forward since courts and legislatures in the non-free states will narrow down every definition to eliminate anything except those specific guns belonging to the guy going to the Supreme Court.

Nunchucks destroys this issue since it has to be categorized as the right to chose your weapon, not the right to possess. Nunchucks were unknown to the founding fathers & reconstructionists so it can’t be narrowed historically. The only way I can see a judge narrowing the question is by saying that only practical or contemporary U.S. G.I. military weapons are protected, and that does not bother me at all.

Additionally, there is no public angst regarding nunchuks, there are no purported :barf: scholarly articles or research about how nunchucks destroy communities. All you have is a New York legislature scared by Bruce Lee Movies, and a lengthy historical record of nunchucks being used by a persecuted minority to defend themselves from oppression.

While, I have the utmost respect for Alan Gura, Stephen Halbrook and Chris Conte. Kirkland Ellis and Ken Starr, the greatest appellate attorney of his generation, represent Maloney.
 
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