What good is an Individual Right if your State wont enforce it?

By Dave Kopel

Should state and local governments be allowed to ban handguns? Yes, says the U.S. Court of Appeals for the 7th Circuit, because it is important that governments be able to prohibit self-defense.
Already the National Rifle Association has asked the United States Supreme Court to review the case in order to issue a definitive ruling about whether state and local governments must obey the Second Amendment.

Last year, the Supreme Court's decision in District of Columbia v. Heller said that the Second Amendment protects a broad individual right (not militia-only), and that the core of the right includes the possession of a handgun in the home for self-defense. Like all of the amendments in the Bill of Rights, the Second Amendment is a direct limit on actions of the federal government, including subordinate entities, such as the D.C. City Council, whose powers are only those delegated by Congress.

Chicago and its suburb of Oak Park are the only municipalities in the United States that still have total handgun bans.
Most, but not all, provisions of the Bill of Rights have been made applicable to the states via the 14th Amendment, which was ratified in 1868, and which provides that no state shall "deprive any person of life, liberty, or property, without due process of law." The due process provision applies to local governments as well, since their powers come from state governments, and it has been interpreted to mean that states may not violate essential liberties. Supreme Court decisions have ruled that most of the Bill of Rights is "incorporated" into the 14th Amendment via the doctrine of "substantive due process."

The high court has never ruled on whether the Second Amendment is incorporated. Earlier this year, however, the U.S. Court of Appeals for the 9th Circuit, which covers the nine westernmost states, held that the Second Amendment is incorporated into the 14th, and therefore state and local governments in the 9th Circuit must not violate the Right to Keep and Bear Arms.

In early June, the 7th Circuit (which covers Illinois, Indiana and Wisconsin) ruled the opposite way. The case was National Rifle Association v. City of Chicago & Village of Oak Park. That case was filed the day after the Heller decision was announced. Chicago and its suburb of Oak Park are the only municipalities in the United States that still have total handgun bans.

The 7th Circuit claimed that it was foreclosed from considering 14th Amendment due process incorporation because of three Supreme Court cases from the 19th century: United States v. Cruikshank, Presser v. Illinois and Miller v. Texas. However, those cases only involved the direct application of the Second Amendment to the states. None of them addressed the question of whether the 14th Amendment's due process clause makes the Second Amendment enforceable against the states.

The 7th Circuit put enormous weight on the principle that lower courts should not presume that a still-valid Supreme Court precedent is going to be overruled. As an illustration, the 7th Circuit pointed to the history of the 1997 Supreme Court decision in State Oil Co. v. Khan, which overruled the 1968 Supreme Court decision Albrecht v. Herald Co. In Albrecht, the court had interpreted section 1 of the Sherman Antitrust Act, which forbids "Every contract, combination ... or conspiracy, in restraint of trade," to mean that manufacturers are forbidden to set maximum prices that their retailers can charge. (This is called "vertical price fixing.") By 1996, economists had proven—and several Supreme Court cases had seemed to agree—that Albrecht's rationale was entirely wrong. Yet Albrecht had not been overruled, and so the 7th Circuit obeyed it.

When the Supreme Court in State Oil Co. v. Khan overruled Albrecht in 1997, the Supreme Court praised the 7th Circuit for having adhered to Albrecht, since Albrecht had not yet been overruled, even though almost everyone had correctly predicted that its days were numbered.

In the handgun ban cases, the 7th Circuit congratulates itself for its treatment of Albrecht, and says that a similar approach is required on the question of whether states must respect the Right to Keep and Bear Arms.

Indeed,
Posner penned
an article last
summer in The New Republic that castigated the
Heller decision
and expressed
his own preference for a "thin Constitution."


The 7th Circuit's claim, however, is founded on a rather obvious logical error. Albrecht's 1968 judicial rule against vertical price fixing was an interpretation of one phrase in one federal statute, and the 1997 State Oil case was a reinterpretation of that very same phrase. However, the plaintiffs in NRA v. Chicago were asking the court to rule on a constitutional provision that none of the 19th century cases had addressed.


http://www.nrapublications.org/a1f/chicago.html