Bill of Rights Neutered By 7th Circuit Court

[Glocktogo]

What a bunch of embiciles:

http://news.yahoo.com/s/bloomberg/au4tj_mlpv40

Sotomayor May Have Some Unlikely Allies on Gun Issue

June 2 (Bloomberg) -- Judge Sonia Sotomayor’s best defense against firearms owners mobilizing to oppose her U.S. Supreme Court nomination may come from an unlikely source: two top conservatives on the federal bench.

Sotomayor was labeled “anti-gun” by Gun Owners of America for refusing to extend to the states the U.S. Supreme Court’s 2008 decision overturning a Washington, D.C., handgun ban. The group said a January ruling by a three-judge panel that included Sotomayor displayed “pure judicial arrogance” for declining to throw out a New York state weapons law.

Today, Richard Posner and Frank Easterbrook, appointed to the 7th U.S. Circuit Court of Appeals in Chicago by President Ronald Reagan, took the same hands-off as Sotomayor. They joined a 3-0 ruling that upheld weapons ordinances in Chicago and suburban Oak Park, Illinois, and rejected challenges by gun rights advocates.

“The Supreme Court has rebuffed requests to apply the Second Amendment to the states,” Easterbrook wrote for the three-judge court.

In its ruling last year on the Washington handgun ban, the Supreme Court said the Second Amendment protects an individual’s right to bear arms against regulation by the District of Columbia and the federal government. Previously, the high court had recognized only a collective right to bear arms applied by state militias.

“It’s nice to have two leading conservative judges” for support, said Washington lawyer Patricia Millett, a Supreme Court specialist. It “will really take the steam” out of accusations Sotomayor, 54, is hostile to gun rights, she said.

Private Meetings

Sotomayor began meeting individually in private today with senators in preparation for hearings on her confirmation. No date has been set for the hearings.

Posner and Easterbrook are leaders of the so-called law and economics school of thought that espouses free-market principles to help resolve legal questions.

They signaled in court arguments last month that their ruling today would say it is up to the Supreme Court -- not appellate judges -- to extend the Constitution’s Second Amendment protection for gun owners to the states.

Sotomayor, a judge on the 2nd U.S. Circuit Court of Appeals in New York, likely will face questions on gun rights when the Senate Judiciary Committee holds hearings on her high court nomination by President Barack Obama to replace retiring Justice David Souter.

An Important Footnote

The Supreme Court said in a footnote to its 5-4 ruling in the Washington case that it didn’t decide whether the Second Amendment binds the states as well as the federal government and the District of Columbia.

The San Francisco-based 9th U.S. Circuit Court of Appeals ruled this year that states are bound by the Second Amendment’s protection for an individual’s right to bear arms -- in contrast to the three-judge panel in New York that included Sotomayor. The 9th Circuit struck down a local ordinance that banned guns from public property.

Mark Tushnet, a law professor at Harvard University in Cambridge, Massachusetts, suggested it was the 9th Circuit approach that is “activist.”

“Judge Sotomayor’s position” and those of Posner and Easterbrook, “is far more in the mainstream,” Tushnet said in an e-mail.

‘Promising Ammunition’

Republican strategist John Ullyot said in an e-mail, “Gun rights is emerging as the most promising ammunition” for Republicans to attack Sotomayor’s nomination. He declined to say how much political traction the issue will provide.

Sotomayor’s position “speaks to her judicial philosophy,” said Erich Pratt, spokesman for the 300,000-member Gun Owners of America, based in Springfield, Virginia. “We plan to be very involved.” The group on its Web site urged members to contact senators.

The 2nd Circuit panel that included Sotomayor ruled in January in a case involving numchucks, or martial-arts sticks. A New York law bans them as dangerous weapons.

In a brief, unsigned opinion, the panel said it lacked authority to overturn the ban because that is a matter for the Supreme Court. The high court has “the prerogative of overruling its own decisions,” the opinion said.

The Citizens Committee for the Right to Keep and Bear Arms said on its Web site that Obama nominated Sotomayor to “stack courts” with gun-control advocates.

‘Serious Concerns’

So far, the National Rifle Association, the largest gun- rights organization in the U.S., hasn’t taken a position.

“We have questions and we have serious concerns,” said NRA spokesman Andrew Arulanandam.

It was the Fairfax, Virginia-based group’s challenge to gun-control laws in Chicago and Oak Park that prompted today’s ruling by the appeals court in Chicago that includes Easterbrook and Posner. When the case was argued, the two judges peppered NRA lawyers with questions about why the case shouldn’t be thrown out.

“I don’t see how you can get around the Supreme Court’s admonition to us that we are not to anticipate overruling of Supreme Court decisions,” Posner said at the May 26 argument.

In the 7th Circuit’s opinion, Easterbrook wrote that, if an appeals court ignores a Supreme Court decision “by identifying and accepting one or another contention not expressly addressed by the justices,” high court rulings would “bind only justices too dim-witted to come up with a novel argument.”

Today’s ruling likely will be cited by Sotomayor and her defenders to blunt criticism she showed hostility to gun rights.

It shows Sotomayor “did what the good judge should do: respect the authority and hierarchy of the federal court system,” said Neil Seigel, a former Democratic staff counsel to the Senate Judiciary Committee who teaches at Duke University law school.

Calling Sotomayor a judicial activist based on the weapons case takes that label and “stands it on its ear,” Millett said.

Let's see, the SCOTUS ruled that the 2A is an individual right.

The Tenth Amendment reads: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The SCOTUS has repeatedly ruled that ALL levels of government in the US must abide by an individuals 4th Amendment rights.

Yet somehow these rocket scientists, in spite of a SCOTUS ruling otherwise, don't believe that states must abide by other BoR Amendments reserved for the people.

Gee, does this mean that states can restrict 1st Amendment rights? Does it mean that states can force the housing of National Guard troops by the people? Does it mean they can try people in double jeopardy?

So what makes them think that it's ok to let states do as they please regarding the 2nd Amendment?

What a bunch of monumental DUMBASSES!!!!!!! :finger:

 

[mons meg]

Oddly enough, with the 9th Circus ruling in the Nordyke case, there may be enough to push this up to SCOTUS

 

[Roadking Larry]

There is a decided split among Circuit Courts. It is almost a certainty that the SCOTUS will take this issue.

 

[purplehaze]

the constitution was written to keep a centralized government from becoming overly strong and keep the states power from being tromped on. So, the constitution was drafted to limit the powers of the federal government, but, not the states. The 14th amendment was used to apply certain amendments and sometimes only parts of amendments to the states and thereby, limit their power. The second amendment has not been fully incorporated through the 14th amendment to the states and that is why states have various levels of restrictions on firearms.

What a bunch of embiciles:

http://news.yahoo.com/s/bloomberg/au4tj_mlpv40



Let's see, the SCOTUS ruled that the 2A is an individual right.

The Tenth Amendment reads: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The SCOTUS has repeatedly ruled that ALL levels of government in the US must abide by an individuals 4th Amendment rights.

Yet somehow these rocket scientists, in spite of a SCOTUS ruling otherwise, don't believe that states must abide by other BoR Amendments reserved for the people.

Gee, does this mean that states can restrict 1st Amendment rights? Does it mean that states can force the housing of National Guard troops by the people? Does it mean they can try people in double jeopardy?

So what makes them think that it's ok to let states do as they please regarding the 2nd Amendment?

What a bunch of monumental DUMBASSES!!!!!!! :finger:

 

[dutchwrangler]

Since the Constitution died long ago the BoR is null and void too. It's not as though we actually live in a free country even though most citizens think this is the case.

 

[bulbboy]

http://dprogram.net/2009/06/03/msm-federal-court-says-states-can-regulate-guns/
MSM: Federal Court Says States Can Regulate Guns
Posted by sakerfa on June 3, 2009

(WSJ) – A federal appeals court in Chicago ruled Tuesday that the Second Amendment doesn’t bar state or local governments from regulating guns, adopting the same position that Judge Sonia Sotomayor, President Barack Obama’s nominee to the Supreme Court, did when faced with the same question earlier this year.

Last year, the U.S. Supreme Court cited the Second Amendment to strike down a handgun ban adopted in 1976 by the Washington, D.C., City Council. The court, by a 5-4 vote, found that the amendment protected from federal infringement an individual right to “keep and bear arms.”

The decision applied only to the District of Columbia, a federal enclave that is not a state. It left open whether the amendment also limits the powers of state government.

A string of 19th century Supreme Court decisions limited application of the Bill of Rights to state governments. During the 20th century, the Supreme Court held that certain constitutional rights, but not the Second Amendment, could be enforced against the states.

Gun-rights groups challenged ordinances in Chicago and Oak Park, Ill., as unconstitutional in light of the Supreme Court’s decision last year. A federal district judge rejected their arguments, a decision affirmed Tuesday by the Seventh U.S. Circuit Court of Appeals.

Writing for a three-judge panel, Judge Frank Easterbrook observed that an 1886 Supreme Court decision limited the Second Amendment to the federal government. While that decision might be a “fossil,” the lower courts have no power to overrule a Supreme Court opinion even if they suspect the high court may be inclined to do so itself. It was “hard to predict” what the Supreme Court would do should it consider the question in future, Judge Easterbrook wrote.

Judge Easterbrook and the two other Seventh Circuit judges were all appointed by Republican presidents. Judge Easterbrook wrote that they agreed with an unsigned Second Circuit opinion that in January rejected a Second Amendment challenge to a New York state law barring possession of nunchuka sticks, a martial arts weapon. That panel, in New York, included Judge Sotomayor and two other judges appointed by President Bill Clinton.

In San Francisco, however, a Ninth Circuit panel earlier this year held that the Second Amendment applies to state governments, even as it upheld a local ordinance banning guns from county property. One judge was appointed by a Republican president, the other two by Democrats.

Were they to follow the Ninth Circuit’s reasoning, Supreme Court “decisions could be circumvented with ease,” Judge Easterbrook wrote. “They would bind only judges too dim-witted to come up with a novel argument.”

The split among the circuits increases the likelihood that the Supreme Court will step in decide the Second Amendment’s application to state weapons laws.

If confirmed to the Supreme Court, Judge Sotomayor would not be bound by prior high court decisions and could provide her own analysis of the Second Amendment’s application.

 

[omegis13]

Anyone here actually read the 7th circuits ruling for the case? I've skimmed a bit of it, and it's not that badly written, and is actually quite appropriate. In the Heller decision, Scalia makes it very, very clear that the ruling is in reference to federal regulation of firearms and by no means acts to incorporate 2A via the 14th Amendment. Additionally, every case of incorporation I find reference to is a SCOTUS case, not a case that ended in the circuit courts, which leads me to believe that as a form of precedence, it is the duty of the Supreme Court to handle the matter, and the circuit courts to then enforce. While the 9th circuit seems to have already ruled that the second amendment is applicable state and local government, this may have never been intended in their ruling, seeing as they still upheld the ruling regardless of their feelings on 2A. Also, as already stated, this ruling as well as the Nordyke ruling from the 9th circuit seem to be in conflict, which makes it even more likely that the Supreme Court will this case.

 

[AresV]

I think we're only going to see more of this crap over the next few years. Judges think they can legislate from the bench and they're clearly doing it in this case.

IMO, this is just another point in history where tyranny is beginning to set in.

 

[FlimFlam]

Isn't this a mixed bag?

If the federal government cannot regulate firearms, can tax stamps be valid? It's a form of regulation that is paid to the feds right?

Would this also preclude AWB? Since it would be stemming from federal power and not each individual state legislating their own AWB?

Sure in places like Chicago, New York and California they might have restrictive firearm laws that I do not feel are a good idea, but getting the Feds to acknowledge the 2A and staying out of it seems like a step in the right direction.

Seems like dealing with politicians closer to home to fight for 2A rights would be preferable to fighting representatives from other states in D.C.

(This is all based on speculation, please feel free to correct me if I'm wrong)

 

[shootinpreacher48]

they are still trying to figure out what "SHALL NOT BE INFRINGED" means, I wander if our Politicans can read sometimes.