B.L.U.F. Judges have history, and it is important to understand their history. We explore a series of opinions issued by one Judge that are consistently anti-Second Amendment, even though the Supreme Court has told him he is wrong.

National Rifle Ass’n of Amer., Inc. v. City of Chicago, 567 F.3d 856 (7th Cir. 2009)

Back in 2009, the NRA et al. challenged the City of Chicago’s ban on the possession of most handguns. This was after District of Columbia v. Heller, 467 U.S. 837 (2008). In an opinion, written by Chief Judge Easterbrook, the Seventh Circuit court affirmed a lower court finding that such a ban was constitutional.

He begins with:

Two municipalities in Illinois ban the possession of most handguns. After the Supreme Court held in District of Columbia v. Heller, ___ U.S. ____, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), that the second amendment entitles people to keep handguns at home for self-protection, several suits were filed against Chicago and Oak Park. All were dismissed on the ground that Heller dealt with a law enacted under the authority of the national government, while Chicago and Oak Park are subordinate bodies of a state. The Supreme Court has rebuffed requests to apply the second amendment to the states. See United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 (1876); Presser v. Illinois, 116 U.S. 252, 6 S. Ct. 580, 29 L. Ed. 615 (1886); Miller v. Texas, 153 U.S. 535, 14 S. Ct. 874, 38 L. Ed. 812 (1894). The district judge thought that only the Supreme Court may change course. 2008 WL 5111112, 2008 U.S. Dist. LEXIS 98134 (N.D. Ill. Dec. 4, 2008).
National Rifle Ass’n of Amer., Inc. V. City of Chicago, 567 F.3d 856 (7th Cir. 2009)

Here the judge is saying that district courts were dismissed because the Second Amendment didn’t apply to the state nor to subordinate bodies of a state. He goes on to say that three cases from the 1800s support this because the Supreme court did not take up such cases.

Of interest, at a technical level, is that the judges sites are to an entire opinion. This is okay, but a better citation will have a page pin. A page pin is a reference to an exact page within a document or to a paragraph if paragraphs are identifiable.

The judge also uses Slaughter-House Cases, 83 U.S. 36 (1873). The Slaughter-House cases were brought to the Supreme Court out of New Orleans, Louisiana. The city and state wanted to improve sanitary conditions, i.e. something for the public good, they were going to do this by forcing all the slaughterhouses to a single location in the south of the city. This was, indeed, a good thing.

To achieve this, the state passed legislation allowing the city to create a corporation that would then collect money from the butchers in the city for the privilege of working in the approved areas of land. In other words, the state passed a law requiring people to buy a license to work, they then set up a corporation to hand out administrate those licenses. That administration was allowed to charge.

The case went up through the inferior courts where it was upheld, when it finally reached the Supreme Court, the Supreme Court affirmed the lower court rulings. The outcome of this Supreme Court Opinion was that the 14th amendment only applied to those rights guaranteed by the United States, not the individual states.

In short, it gutted the 14th amendment.

… The Slaughter-House Cases holds that the privileges and immunities clause does not apply the Bill of Rights, en bloc, to the states. …Id.. Even though the Heller Court had just said that the right to keep and bear arms was an individual right, this judge felt that it didn’t apply to the states.

In addition, he held that the other older cases were still good Another court of appeals has concluded that Cruikshank, Presser, and Miller still control even though their reasoning is obsolete. Maloney v. Cuomo We agree with Maloney, which followed our own decision in Quilici v. Morton Grove.Id..

This is a type of incestuous circular reasoning that is found in cases frequently. Court A says “it is ok”. Court B says “it is ok because court A says it is ok”. Then Court A says “it is ok because Court B says it is ok”.

What is happening in this opinion is that the Judge is working towards limiting the scope of Heller as much as possible.

Now the Judge does something that I would call lying but is likely considered just “good lawyering”.

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.

Here is footnote 23 from Heller:

With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U.S. 252, 265, 6 S. Ct. 580, 29 L. Ed. 615 (1886) and Miller v. Texas, 153 U.S. 535, 538, 14 S. Ct. 874, 38 L. Ed. 812 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.
District of Columbia v. Heller, 467 U.S. 837 (2008) at 2813 n 23.

The footnote was written in 2008 and refers to cases from 1886 and 1894. The important question is: Why did Justice Alito say this in the first place?

The reason is that he didn’t write it. That quote was written by Justice Breyer with Justice Stevens, Justice Souter, and Justice Ginsburg joining in dissent.

Again, we have an anti-Second Amendment rights judge using words from the dissent to support their fantasies.

The judge goes on to claim that the Supreme Court has not overturned Slaughter-House which is what he believes is required to apply the entire Bill of Rights to the states. He claims that only the First, Fourth, parts of the Fifth, Sixth, Seventh, parts of the Eighth have been incorporated. He isn’t explicit enough about the Ninth and Tenth Amendments.

The thing that shows through this judge’s opinion is that he constantly argues in the negative. The Justices didn’t do this for the Seventh Amendment, why should we assume they would for the Second Amendment? Over and over again, his argument is that the Supreme Court hasn’t explicitly told him to do it right, so he doesn’t have to.

One function of the second amendment is to prevent the national government from interfering with state militias. It does this by creating individual rights, Heller holds, but those rights may take a different shape when asserted against a state than against the national government. Suppose Wisconsin were to decide that private ownership of long guns, but not handguns, would best serve the public interest in an effective militia; it is not clear that such a decision would be antithetical to a decision made in 1868. (The fourteenth amendment was ratified in 1868, making that rather than 1793 the important year for determining what rules must be applied to the states.) 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. See United States v. Jackson, 555 F.3d 635 (7th Cir.2009) (no constitutional right to have guns ready to hand when distributing illegal drugs).
NRA v. Chicago at 859

Here the Judge is setting the time from the adoption of the 14th Amendment, not the Second. This is poor logic. It is designed to allow him to avoid “DO NOT INFRINGE” and instead concentrate on reconstruction era infringements as proof of history and tradition. In addition, he states that the Second Amendment only applies to the law-abiding. If the state makes it illegal to possess a firearm, and you have one, you are breaking the law, that means you are not law-abiding, which means that the Second Amendment does not extend its protections to you.

I think this is how they did it in the Soviet Union.

Why is this case Important?

Like many cases, this case changes names as it moves through the justice system. This case made its way all the way up to the Supreme Court of the United States.

There, in 2010, the Court handed down a stinging rebuke of this opinion.

You might know that case better as Mcdonald V. Chicago, 177 L. Ed. 2d 894 (2010).

Spread the love

By awa

2 thoughts on “Bad Judges Continue to Make Bad Opinions”
  1. So long story short, this piece of nonsense legal-ese led to the incorporation of the 2A to the states.

    I’m good w/ that. Especially w/ the same type of nonsense being used to justify AWB’s etc in certain courts which will be likely shot down by SCOTUS when it reaches them.

Only one rule: Don't be a dick.

This site uses Akismet to reduce spam. Learn how your comment data is processed.