They’re back. Gun cases I mean. After last year’s decision in Heller v. D.C., which we covered here at the Golden State, more gun cases are moving through the federal courts. Heller held that the federal government may not prohibit people from having handguns in their homes, ready for use in self-defense. The Second Amendment protects an individual right to bear arms, unrelated to militia service.
But what about states and cities? May they pass local laws restricting the right? The Constitution reserves to the states all powers not specifically granted to the federal government. So, does the Second Amendment apply to them?
If you don’t care, you’re excused. But don’t go far. On Friday we’ll have a sex post.
The legal issue involved is whether all of the Bill of Rights of the U.S. Constitution apply to the states. In 1873, the U.S. Supreme Court said “no.” (In a case entitled, The Slaughter-House Cases.” ) Then, beginning in the same year of Custer’s Last Stand, the Supreme Court specifically said that the Second Amendment does not apply to the states. (!876, 1886, 1894)
The Springfield Rifle Used by Custer's Soldiers
In the 20th Century, the Court began applying portions of the Bill of Rights to the states. Freedom of speech and religion, right against self-incrimination, right to a jury in a criminal case were some of the rights “selectively incorporated” via the Fourteenth Amendment to the Constitution. Although most everybody has hated The Slaughter-House Cases for a long time, the Court has never overruled it. Meaning, for instance, your state may refuse you a jury in a civil case unless it has its own constitutional provision giving you that right because the Seventh Amendment has never been applied to the states.
The National Rifle Association (NRA) is pressing several lawsuits trying to get rid of those old cases. Three federal courts of appeal have now ruled in those lawsuits. Only the Ninth Circuit agreed with the NRA, holding that the Second Amendment can be selectively incorporated. The other two circuits (Second and Seventh) thought that the three judges of the Ninth Circuit got too big for their britches.
Decisions of the United States Supreme Court are binding on all lower federal courts. They are not suggestions, they are commands. When there is a controlling Supreme Court decision, lower courts have to follow it, no matter now much they dislike it. Even if the decisions are old, poorly reasoned, and maybe wrong; the lower courts have to toe the line. As Judge Easterbrook explained last week, if lower court judges were free to question the reasoning behind Supreme Court decisions, those decisions would, “. . . bind only judges too dim-witted to come up with a novel argument.”
Judge Easterbrook, who wrote the 7th circuit’s opinion and Judge Posner who signed it, are not shrinking violets. Appointed by Ronald Reagan, both remain true conservatives and admit they are bound by Supreme Court decisions. But both are happy to share their thoughts with the Supreme Court, especially when they believe the Supreme Court isn’t thinking clearly.
So, at oral argument in the Chicago case, Judge Posner suggested it was “preposterous” to suggest — as the NRA does — that Americans in 1868 thought that an individual right to bear arms existed or that they wanted it applied to the states. They had, after all, just put down an insurrection fueled by privately owned arms. (1868, the year the 14th Amendment was added to the Constitution, controls an originalist’s or a textualist’s view. What matters to that approach to constitutional interpretation was what the people who voted for the amendment thought they were voting for at the time they voted. See our posts using Dudley Doright to explain this.)
Judge Easterbrook’s opinion also suggests that, because Heller rests on the right of self-defense, it may not carry the weight the NRA loads on it. Suppose, says Easterbrook, a state abrogated the right to self-defense, which was the basis of Justice Scalia’s decision in Heller. As I’ve warned you before, you have to watch Justice Scalia very carefully. He often begins his opinions in the middle, leaving out arguable premises and assumptions. In fact, the more questionable his assumptions, the harder he tries to hide them.
So it was in Heller. In addition to his blithe assumption about those semi-colons, he also wrote as though the right to self-defense was sacred, knowing all the time that it isn’t.
The Winchester 73 a/k/a The Gun that Won the West
The right to self-defense is a political right, not a constitutional right. You look in vain for the words “self-defense” in the Constitution. Because it is a political right, the people or their elected representatives may change it without amending the Constitution. Because it is a creature of the common law and not of the Constitution, judges may change it. As Judge Easterbrook notes, a state could pass a law making shooting someone in self-defense a crime. Then no one could have a gun at home for self-defense, because self-defense itself would be a crime. (One could still have guns for hunting and target shooting but regulations like those in Heller requiring that guns kept at home be disassembled and locked up would stand.)
And, as Judge Easterbrook points out, that is not a farfetched example. Already the right to self-defense is restrained. You have a duty to retreat in many situations. Depending on the law in your state, you might well end up in jail if you shot an intruder as he was coming over the fence into your yard. You could end up in jail if you shot him before he came through your window. A court could one day decide that the threat of prison sufficiently deters burglaries, holding that private citizens cannot use deadly force no matter what happens.
In other words, your right to shoot other human beings — already quite limited — could be extinguished altogether, yanking the rug out from Heller.
Obviously that day won’t arrive for a very long time, if ever. The current Supreme Court certainly won’t outlaw self-defense. But Judges Easterbrook and Posner clearly enjoyed firing a shot across its bow.
You can read Judge Easterbrook’s opinion here.
The Second Circuit opinion — one of the judges was Judge Sotormayor — is here.
The Ninth Circuit’s opinion is here.
The NRA’s petition asking the Supreme Court to take the case is here.
If you are keeping score, nine federal judges have addressed the issue since last year’s decision in Heller. Four were appointed by Republicans, five by Democrats. Six think only the Supreme Court can decide the issue, three disagree. Of the three in the Ninth Circuit who stuck out their necks and applied the Second Amendment to the states, one was appointed by President Reagan, one by President Carter, and one by President Clinton. Go figure.