7th Circuit upholds municipal handgun ban.

• Author: Ziemer, David

Byline: David Ziemer

The Seventh Circuit wasted no time in issuing its opinion on whether the Second Amendment applies to cities and states.

On May 26, it heard oral arguments. One week later, the court held that it is strictly for the U.S. Supreme Court to decide whether it does or not.

While the quick turnaround is noteworthy, the result was not surprising.

During oral arguments, Judges Richard A. Posner and Frank H. Easterbrook frequently interjected to object that it is not the court's job to anticipate the Supreme Court overruling its prior opinions.

The court's opinion, written by Judge Easterbrook, was consistent with the tone of the oral argument.

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, Easterbrook wrote. They would bind only judges too dim-witted to come up with a novel argument.

At issue are ordinances of the city of Chicago and the village of Oak Park, Illinois, banning the possession of most handguns.

The ordinances were challenged based on the Supreme Court's holding in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), that the Second Amendment entitles people to keep handguns at home for self-protection.

The district court dismissed the suits, and the Seventh Circuit affirmed.

Background

The Supreme Court has held on several occasions that the Second Amendment does not apply to states. U.S. v. Cruikshank, 92 U.S. 542 (1876); Presser v. Illinois, 116 U.S. 252, 265 (1886); and Miller v. Texas, 153 U.S. 535, 538 (1894).

Since those cases, however, the Supreme Court has used selective incorporation to apply various provisions of the Bill of Rights against the states via the Due Process Clause of the Fourteenth Amendment. However, it has not yet done so with the right to bear arms.

Two other circuits have addressed the issue, reaching opposite results. In Nordyke v. King, 563 F.3d 439 (9th Cir. 2009), the Ninth Circuit used the selective incorporation approach; but in Maloney v. Cuomo, 554 F.3d 56 (2d Cir.2009), the Second Circuit deferred to the Supreme Court.

Chicago and Oak Park

Like the Second Circuit, the Seventh Circuit deferred, concluding that Cruikshank and its progeny are still controlling precedent, even though their reasoning may be obsolete.

Before concluding, the court emphasized that the U.S. Constitution establishes a system in...