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June 02, 2009

WTF? 7th Circuit Rules Second Amendment Not Incorporated by 14th Amendmet
Update: Appears to Be Not Such a Big Deal; Conservative Judges Just Properly Following Precedent That Only the SC Can Overturn

The liberal ninth circuit just ruled it was incorporated, and now the 7th circuit -- on a panel including two of the federal bench's most conservative (and most brilliant) judges, Posner and Easterbrook -- rules it isn't.

They base their decision on federalism, and are reluctant, it seems, to extend another limit on federal power to the states. Which is a fair concern -- but all the other amendments have been so imposed on state action (pretty much), so deciding this one amendment is where federalism makes its last (and only) stand seems odd. They conclude...

That the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule.... Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon. How arguments of this kind will affect proposals to “incorporate” the second amendment are for the Justices rather than a court of appeals.

Here's an odd passage:

Suppose a state were to decide that people cornered in their homes must surrender rather than fight back—in other words, that burglars should be deterred by the criminal law rather than self help. That decision would imply that no one is entitled to keep a handgun at home for self-defense, because self-defense would itself be a crime, and Heller concluded that the second amendment protects only the interests of law-abiding citizens....

That hypothetical is intended to illustrate a legislative decision a state may make -- it may, the 7th circuit finds, completely make the right of self-defense illegal. And, possessing that right, then, the state must be free of the shackling of a federal amendment. I suppose that's an effort at something arguably strict-constructionist, because the Constitution doesn't mention the right to self-defense, but rather the right to serve in a militia. And so, I guess, only the expressly mentioned right is in fact a right.


I wouldn't argue it myself.

The Supreme Court now must take up the question, as there is a bona-fide circuit split on a major constitutional question.

Their conclusion -- "How arguments of this kind will affect proposals to “incorporate” the second amendment are for the Justices rather than a court of appeals" -- suggests this ruling is more about their belief as to the proper scope of appellate review than a ruling on the merits. They seem to be saying that perhaps the Second Amendment should be incorporated, but as mere Court of Appeals judges, they don't have that right. Only the Supreme Court does.

I would hope that a wise Latina will come, more often than not, to a better decision on this question than a white male would.

Thanks to Thomas.

Ah, Precedent: This isn't a big mystery, as The Hammer points out.

What I read elsewhere is that there is a 1886 SC precedent that the lower courts can't overturn, so as a matter of law, they have to "pass the buck". The writer I read, I think through Drudge, said this opens the door for the current court to look at the precedent case and possibly overturn it, creating a clearer current law.

Right, there was an 1886 Supreme Court decision rejecting the applicability of the Second Amendment to the states. (Sotomayor relied upon that in dismissing a 2nd A claim that came before her.)

Now, it is a fundamental rule that lower courts do not overturn the precedents of higher courts (generally), so Posner and Easterbrook really do seem to be saying, "We don't have the power to do this; only the Supreme Court does."

The Ninth Circuit, I guess, felt as if they could overturn/ignore/distinguish the old precedent because Heller, while not directly speaking to this issue, pretty clearly pointed in its direction. Thus the Ninth Amendment concluded the Supreme Court would overturn the precedent the moment they had the chance, so why stand on ceremony?

So explained, the decision doesn't seem to mean much at all, except that Posner and Easterbrook, being conservatives, have a great deal of respect for self-imposed limits on judicial power. And those self-imposed limits are very important, because the liberal theory of judicial power is pretty much without limit at all, except for whatever internal limits the judges agree to restrain themselves with.

All they're doing is laying out the reasons the Supreme Court could re-affirm its precedent, and deferring to those hypothetical reasons.

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posted by Ace at 05:29 PM

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