Tuesday, June 2, 2009

Seventh Circuit: Second Amendment Does Not Apply to States - Only the Supreme Court Can Reach Such a Conclusion

Today, in National Rifle Assoc. of Am., Inc. v. City of Chicago (08-4241, 08-4243 & 08-4244), the Seventh Circuit affirmed two district court holdings that District of Columbia v. Heller, 128 S. Ct. 2783 (2008) did not hold that the Second Amendment applies to states. Chief Judge Easterbrook wrote the opinion and Judge Posner and Judge Bauer joined.

The court held that the Supreme Court's decisions must be followed by the lower courts, unless the Supreme Court itself overrules the decision. The court stated:

"Repeatedly, in decisions that no one thinks fossilized, the Justices have directed trial and appellate judges to implement the Supreme Court’s holdings even if the reasoning in later opinions has undermined their rationale. “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989). Cruikshank, Presser, and Miller have “direct application in [this] case”. Plaintiffs say that a decision of the Supreme Court has “direct application” only if the opinion expressly considers the line of argument that has been offered to support a different approach. Yet few opinions address the ground that later opinions deem sufficient to reach a different result. 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. They would bind only judges too dim-witted to come up with a novel argument."

(emphasis mine).

As to the matter before the court:

"Anyone who doubts that Cruikshank, Presser, and Miller have “direct application in [this] case” need only read footnote 23 in Heller. It says that Presser and Miller “reaffirmed [Cruikshank’s holding] that the Second Amendment applies only to the Federal Government.” 128 S. Ct. at 2813 n.23. The Court did not say that Cruikshank, Presser, and Miller rejected a particular argument for applying the second amendment to the states. It said that they hold “that the Second Amendment applies only to the Federal Government.” The Court added that “Cruikshank’s continuing validity on incorporation” is “a question not presented by this case”. Ibid. That does not license the inferior courts to go their own ways." (emphasis mine.)

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