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December 05, 2008

Gun Rights in the Courts

There are some interesting developments in Second Amendment law this week. First, a New York judge dismissed drug and gun charges against a 9/11 rescuer:

Judge Hensley, citing McCormack's work at Ground Zero and the symbolic significance of the flag he uncovered, has granted the motion.

The judge listed the 10 factors a court must consider when determining a motion to dismiss in the interest of justice under CPL 170.40, including "the history, character and condition of the defendant" and "any other relevant fact indicating that a judgment of conviction would have no useful purpose."

The judge also cited District of Columbia v. Heller, 128 S.Ct. 2783, the 2008 U.S. Supreme Court decision finding that "the Second Amendment conferred an individual the right to keep and bear arms."

Noting that a court "need not recite an analysis of each of the factors in reaching its determination," Hensley dismissed the gun charges, citing "the totality of the circumstances presented."

As Justice Scalia discussed in his opinion in Heller, state courts and state legislators have been citing protections contained within the Second Amendment as far back as the early 1800s. Some would argue that they were erroneously relying on the Second Amendment. But I suspect that we will be seeing more of this now that the Supreme Court (even the dissenting judges) explicitly stated that the right is an individual one.

Second, a federal district court has issued an opinion in NRA v. City of Chicago (PDF), the suit filed by the gun-rights organization the day after Heller was handed down which challenges Chicago's handgun ban. The argument is a simple one: most of the Bill of Rights have been incorporated in the constitutional guarantees provided in the Fourteenth Amendment; therefore, so is the Second Amendment.

The district court was bound by precedent to disagree and rule for Chicago:

In this instance our Court of Appeals has squarely upheld the constitutionality of a ban on handguns a quarter century ago in Quilici v. Village of Morton Grove, 695 F. 2d 261 (7th Cir. 1982). And in reaching that conclusion, Quilici relied on the Supreme Court's decision in Presser v. Illinois, 116 U.S. 252, 265 (1886):
It is difficult to understand how appellants can assert that Presser supports the theory that the second amendment right to keep and bear arms is a fundamental right which the state cannot regulate when the Presser decision plainly states that "(t)he Second Amendment declares that it shall not be infringed, but this ... means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the National government...."

In doing so, Quilici rejected arguments (1) that later Supreme Court decisions that had incorporated other Bill of Rights provisions into the Fourteenth Amendment had effectively overruled Presser and (2) that the entire Bill of Rights had been implicitly incorporated into the Fourteenth Amendment to apply to the states.


This Court should not be misunderstood as either rejecting or endorsing the logic of plaintiffs' argument it may well carry the day before a court that is unconstrained by the obligation to follow the unreversed precedent of a court that occupies a higher position in the judicial firmament.

NRA v. Chicago is one to watch. It is very likely on its way to the Supreme Court, where, if Justice Scalia's opinion in Heller is any indication, the NRA's logic will find sympathetic jurists.

Thanks to DrewM. for the first link.

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posted by Gabriel Malor at 01:45 AM

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