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