Constitutional Law

Echoes of Heller

In D.C. v. Heller last term, the Supreme Court established the right to bear arms as an individual right rather than one extending solely to participants in a militia or other collective body. However, Heller only considered a gun ban set by Congress, in that municipal regulations in D.C. are set at the federal level. Now, challenges to state gun bans are moving through lower courts at a pace likely to place them before the Supreme Court next term, according to SCOTUSblog’s Lyle Denniston.

Three cases from Illinois have been consolidated around the question of whether the Second Amendment applies to state and local action. The cases were decided in the Northern District of Illinois in early December. There, Senior Judge Milton Shadur ruled that the Second Amendment only protected the right to bear arms from federal action, permitting state interference with gun ownership.

Judge Shadur’s decisions (here in two of the cases, and here in the third case,) were grounded in two prior determinations that the Second Amendment only limits federal action. In 1982, the Seventh Circuit made this ruling in Quilici v. Village of Morton Grove, with the Supreme Court refusing to hear the case in the subsequent year. There, the Seventh Circuit cited the 1886 Supreme Court case of Presser v. Illinois, holding the same: the right to bear arms only forbade federal interference with gun ownership.

With recent litigation now on appeal to the Seventh Circuit, both sides are acutely aware of Presser. Arguing to extend the Amendment to the states, the National Rifle Association has made a two-pronged argument in its briefs. First, they claim, Presser did not properly rule on the issue of whether the Amendment applied to the states because it was decided prior to the notion of “incorporating” the Bill of Rights to constrain state action. Alternatively, the NRA argues that Presser is outdated and effectively overturned by more recent precedent.

The Seventh Circuit has yet to schedule oral argument in the cases.

Full post as published by ACS Blog on February 17, 2009 (boomark / email).