Fanning the Flames: The Freedom Project Blog


A Tale of Two Seconds: Chicago and the Right to Keep and Bear Arms

By Shawn Healy
Last Tuesday, a three-judge panel of the Chicago-based Seventh Circuit U.S. Court of Appeals refused to strike down local gun ordinances in the city and Oak Park on the grounds that the “Supreme Court has rebuffed requests to apply the Second Amendment to the states.” This represents only the middle chapter of a narrative that involves two other appeals courts, a Supreme Court nominee, and the future of the Second Amendment right to keep and bear arms at the local level.

The story begins with the June 2008 high court decision that nixed a similarly restrictive firearms law in the District of Columbia. In ruling that individuals have a right to keep and bear arms under the Second Amendment, the Court cast aside the prevailing collective right interpretation which deferred to the formation and maintenance of militias by individual states. However, given that the District of Columbia is exclusively a federal territory, this precedent (at least for the time being) does not apply to state and local laws.

On the heels of this landmark decision, the National Rifle Association (NRA) felt emboldened to push the envelope and engage in the process of “selective incorporation” where elements of the Bill of Rights, the this case the Second Amendment, are applied to the states and municipalities located within. Of the first eight amendments to the Constitution that concern individual rights, only the Second, Third, and Seventh Amendments have yet to be applied to the states.

The NRA appeared to operate on fertile ground within the Seventh Circuit given that Reagan appointee Frank Easterbrook teamed with Richard Posner, the most cited lower court judge and a conservative heavyweight in his own right, and William Bauer, another Republican installment. Instead, the trio exercised judicial restraint by refusing to “strike off on its own,” refusing in their words to “undermine…the uniformity of national law.”

The NRA has already appealed, accepting Eastbrook’s invitation “for the Justices rather than a court of appeals” to consider incorporation.

Enter Sonia Sotomayor. Should the Supreme Court grant them a hearing, President Obama’s first Supreme Court nominee, Judge Sotomayor, is likely to be seated and weigh in on the verdict during the 2009-2010 term that begins in October.

Labeled “anti-gun” by the Gun Owners of America and taken to task for refusing to negate a New York weapons law on Second Amendment grounds, Sotomayor will face harsh scrutiny from conservative organizations and Republicans in the Senate who will consider her confirmation.

Pardon the pun, but Sotomayor’s critics lost some of their ammunition in the wake of the Seventh Circuit’s ruling. The fact that Easterbrook and Posner arrived at the same conclusion as Sotomayor shows that she too exercised restraint, not the widely shunned “judicial activism” that equates to a four-letter word in many conservative camps.

It is interesting to note that the Ninth Circuit did take an activist plunge and apply the Second Amendment to an Alameda (CA) County gun ordinance. Given the circuit conflict that now exists between Sotomayor’s Second, paired with Easterbrook’s Seventh, the Supreme Court’s intervention is all but inevitable.

A 5-4 conservative majority led by Justice Antonin Scalia produced the landmark 2008 ruling in favor of an individual’s right to “keep and bear arms,” and this coalition remains in tact even with the addition of Sotomayor as retiring Justice David Souter was a member of the liberal dissenting bloc. Incorporation of the Second Amendment seems inevitable, with or without Sotomayor, though these fireworks are sure to color her confirmation hearings beginning next month.

Closer to home, the Chicago and Oak Park gun ordinances hang on by a thread, left in the hands of nine men and women donning black robes. Local citizens will have a front row seat and watch with pressing interest as the case, confirmation, and courtroom drama proceed on separate, but sometimes intersecting, paths.


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Managing Director

McCormick Freedom Project

Shawn is responsible for overseeing and managing the operations associated with the McCormick Freedom Project. Additionally, he serves as the in house content expert and voice of museum through public speaking and original scholarship. Before joining the Freedom Project, he taught American Government, Economics, American History, and Chicago History at Community High School in West Chicago, IL and Sheboygan North High School in Wisconsin.

Shawn is a doctoral candidate within the Political Science Department at the University of Illinois at Chicago where he received his MA in Political Science. He is a 2001 James Madison Fellow from the State of Wisconsin and holds a bachelor's degree in Political Science, History, and Secondary Education from the University of Wisconsin at Madison.

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About Fanning the Flames and the McCormick Freedom Project

Fanning the Flames is a blog of the McCormick Freedom Project, which was started in 2006 by museum managing director Shawn Healy. The blog highlights the news of the day, in hopes of engaging readers in dialogue about freedom issues. Any views or opinions expressed on this blog represent those of the writers alone and do not represent an official opinion of the McCormick Freedom Project.

Founded in 2005, the McCormick Freedom Project is part of the McCormick Foundation. The Freedom Project’s mission is to enable informed and engaged participation in our democracy by demonstrating the relevance of the First Amendment and the role it plays in the ongoing struggle to define and defend freedom. The museum offers programs and resources for teachers, students, and the general public.

First Amendment journalism initiative

The Freedom Project recently launched a new reporting initiative with professional journalists Tim McNulty and Jamie Loo. The goal is to expand and promote the benefits of lifelong civic engagement among citizens of all ages, through original reporting, commentary and news aggregation on First Amendment and freedom issues. Please visit the McCormick Freedom Project's news Web site, The Post-Exchange at

Dave Anderson
Vice President of Civic Programs
McCormick Foundation

Tim McNulty
Senior Journalist
McCormick Freedom Project

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