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:
— 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.
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”.
Here is footnote 23 from Heller:
— 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.
— 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).