Chicago Law Banning Handguns in City Upheld by Court

Incorporation (Bill of Rights)

Incorporation (of the Bill of Rights) is the American legal doctrine by which portions of the Bill of Rights are applied to the states through the Due Process Clause of the Fourteenth Amendment, although some have suggested that the Privileges or Immunities Clause would be a more appropriate textual basis. Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, in 1833 the Supreme Court held in Barron v. Baltimore that the Bill of Rights applied only to the Federal, but not any State, government. Even years after the ratification of the Fourteenth Amendment the Supreme Court in United States v. Cruikshank, still held that the First and Second Amendment did not apply to state governments. However, beginning in the 1890s, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to "incorporate" most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.

Click to expand...

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. -- 14th Amendment

Click to expand...

Privileges or Immunities Clause: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..."

Due Process Clause: "...nor shall any State deprive any person of life, liberty, or property, without due process of law..."

Equal Protection Clause: "No state shall ... deny to any person within its jurisdiction the equal protection of the laws."

rhinefire said:

The weekend of May 30-31, 2009 there were seven gun homicides in one twenty-four hour period in the city of Chicago. Nuff said for preventing law abiding citizens from "gun owners".

Click to expand...

Oh, this is going to result in more people getting killed and raped.
Thugs will know the people will be unarmed.
The weakest, most vulnerable will suffer most.

.

zimmer said:

Oh, this is going to result in more people getting killed and raped.
Thugs will know the people will be unarmed.
The weakest, most vulnerable will suffer most.

.

Click to expand...

Get a shotgun.

RightinNYC said:

How do you conclude that a unanimous panel decision against incorporation (featuring two of the three most brilliant conservatives in the nation) is a path to incorporation?

Click to expand...

Because it will be appealed to the SCotUS, on the grounds that the 2nd amendment, like all of the others that have been incorporated, applies to actions by the states...?

Wessexman said:

But it was not protected in said constitution until the 14th amendment, presumably. Any such rights were between the individuals and their states.

Click to expand...

Note that several states included similar protections into their constitutions.

And, until the 14th amendment, NONE of the bill of rghts could be applied to the states.

RightinNYC said:

The only three cases ever to address the question of whether the PI Clause incorporates the 2nd amendment against the states all agreed that it doesn't.

The PIC argument seems like a loser, from my perspective. I think the better argument is under the due process clause, but even there, I'm not sure it's convincing.

Click to expand...

If it was convincing for the other amendments that have been incoroprated, why not for the 2nd?

Whats the argument that the 2nd should not be incoroprated against the states?

Inferno said:

There is so much gun violence in the city that they are trying anything.

Click to expand...

And how has that gun ban been woking for them?
Note that 'things are so bad' argument does not create an exception to the Constitution.

The NRA can go to hell on this one. You don't need handguns and assault weapons in this city.

Click to expand...

You arent in a position to judge what others "need", your judgements to that effect do nmot trump the rights of the people, and any such determination by you run contrary to current holdings of the SCotUS.

Goobieman said:

Because it will be appealed to the SCotUS, on the grounds that the 2nd amendment, like all of the others that have been incorporated, applies to actions by the states...?

Click to expand...

In rereading the decision this morning, having had the benefit of some sleep, I am somewhat curious if appeal to the Supreme Court was not the intent of this ruling.

Two municipalities in Illinois ban the possession of most handguns. After the Supreme Court held in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), that the second amendment entitles people to keep 2 Nos. 08-4241, 08-4243 & 08-4244 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 (1876); Presser v. Illinois, 116 U.S. 252 (1886); Miller v. Texas, 153 U.S. 535 (1894). The district judge thought that only the Supreme Court may change course. 2008 U.S. Dist. LEXIS 98134 (N.D. Ill. Dec. 4, 2008).

Click to expand...

Repeatedly, in decisions that no one thinks fossilized, the Justices have directed trial and appellate judges to implement the Supreme Court’s holdings even if the reasoning in later opinions has undermined their rationale.

Click to expand...

And, finally, the concluding sentence:

How arguments of this kind will affect proposals to “incorporate” the second amendment are for the Justices rather than a court of appeals.

Click to expand...

Easterbrook's reasoning may be fairly summarized as "The Supreme Court has not extended Heller to the states, so we leave it to them to make that decision." The language of his ruling repeatedly defers to the Supreme Court in charting a course for the Federal Judiciary, and does so in a fashion which seems to my mind to almost invite certiorari.

Personally, I think Easterbrook was too timid; Cruikshank gives ample room for using Heller to incorporate the Second Amendment at the state level, and thus does not need to be set aside or disregarded as a legal "fossil"--the theory apparently advanced in Nordyke. However, as he seems to have a different reading of Cruikshank than I do, responding to Nordyke's call to set aside Cruikshank as "fosselized", on that basis his reasoning is understandable. It is not for the appellate circuits to overturn a Supreme Court ruling.

RightinNYC said:

The only three cases ever to address the question of whether the PI Clause incorporates the 2nd amendment against the states all agreed that it doesn't.

The PIC argument seems like a loser, from my perspective. I think the better argument is under the due process clause, but even there, I'm not sure it's convincing.

Click to expand...

I'm curious. Why do you feel the PIC argument is a loser? From my readings on the matter, even under the doctrine of selective incorporation, the Heller ruling makes incorporation almost inevitable.

Ethereal said:

But wouldn't you agree this failure to bind and incorporate was largely the consequence of institutionalized bigotry?

Click to expand...

Not really, what do most of the BoR have to do with bigotry?

I just don't see how they could rationalize such a thing. The States are expressly forbidden from infringing upon the privileges and immunities of American citizens.

Click to expand...

Something can be an "individual right" against the government but not against the state. If the federal government (pre-14th) passed a law saying that the people had an inalienable right not to be forced to pay income tax by the fed govt, that doesn't mean that the states can't force them to pay taxes.

Reverend_Hellh0und said:

uhm..... i cut out the rest to simply address this my friend.



if this ruling was legal and constitutional, then why couldn't this same 3 judge panel uphold a law stating slavery was ok in chi town?

Click to expand...

Because a 3 judge panel in chi doesn't have authority to overrule the Constitution or SC?

Reverend_Hellh0und said:

2nd:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."


9th:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Click to expand...

Again, this only matters if you're arguing that the 2nd amendment applies to the states even in the absence of the 14th amendment. That's not what is at issue.

Reverend_Hellh0und said:

this whole line of thinking makes no sense.


what do the 1st 10 amendmendts do then?


this 3 judge panel could by this logic.


ban free speech, press, establish a chicago state church, suspend habeus corpus..... etc etc, etc.. to me this logic fails on so many levels.

Click to expand...

Before those portions of the BoR were enacted, the state absolutely could ban speech, establish religion, etc. (provided it wasn't barred by state constitutions).

Goobieman said:

If it was convincing for the other amendments that have been incoroprated, why not for the 2nd?

Whats the argument that the 2nd should not be incoroprated against the states?

Click to expand...

There aren't any amazingly good ones. A decision against incorporation would probably be some sort of Kennedy opinion based on wishy washy adherence to 100 year old precedent and the important policy concerns involved with guns.

celticlord said:

I'm curious. Why do you feel the PIC argument is a loser? From my readings on the matter, even under the doctrine of selective incorporation, the Heller ruling makes incorporation almost inevitable.

Click to expand...

Because the SC specifically addressed and rejected the PIC argument in Presser, while they've never ruled on the DP argument under the modern framework. I guess it's possible that they'd incorporate it under the PIC, but I get the feeling that if they do, it will be on narrow grounds, which would fit the DP argument much better.

MrVicchio said:

Who were the judges on that panel?

Click to expand...

Stalin, Lenin and Khrushchev

Inferno said:

There is so much gun violence in the city that they are trying anything. There are places in the city where they say you can hear gunshots almost hourly. This for the city of Chicago is a big thumbs up. The NRA can go to hell on this one. You don't need handguns and assault weapons in this city. There is nothing here to hunt except people so The NRA needs to back off on this.

Click to expand...

It sounds like their attempt to reduce gun violence by banning guns has failed miserably. It did, however, create a whole new victim class in Chicago...the law-abiding citizen. When will people understand that criminals don't abide by gun laws, and are therefore unaffected by laws that ban guns?

RightinNYC said:

Not really, what do most of the BoR have to do with bigotry?

Click to expand...

Perhaps I'm confused but when you said:

The 14th didn't automatically bind the states. It took centuries to selectively incorporate the bill of rights...

I assumed the failure to bind the states via the Fourteenth Amendment was largely a consequence of institutionalized bigotry, i.e. the unwillingness of the Federal government to force states to recognize the civil rights of blacks. Wasn't this the biggest obstacle to incorporation?

Something can be an "individual right" against the government but not against the state. If the federal government (pre-14th) passed a law saying that the people had an inalienable right not to be forced to pay income tax by the fed govt, that doesn't mean that the states can't force them to pay taxes.

Click to expand...

Well, certainly, I understand that, but the fact remains the Fourteenth Amendment has been codified for quite some time now. I will concede that others probably know much more about the case history and development of the Constitution but I think a great deal of that "development" was just creative interpretation by the judiciary in order to maintain the status quo. I read the Constitution as it is and how the Founders intended. I take a very dim view of judicial precedent when reading the Constitution because of the judiciary’s historical misapplication of the Constitution.

Ethereal said:

Perhaps I'm confused but when you said:

The 14th didn't automatically bind the states. It took centuries to selectively incorporate the bill of rights...

I assumed the failure to bind the states via the Fourteenth Amendment was largely a consequence of institutionalized bigotry, i.e. the unwillingness of the Federal government to force states to recognize the civil rights of blacks. Wasn't this the biggest obstacle to incorporation?

Click to expand...

I don't know that I would agree with that. I don't deny that it may have played a factor, but the biggest delay in incorporation was the decision in the Slaughterhouse cases, which had nothing to do with bigotry and everything to do with local control over commercial activity. It took 60 years before incorporation really kicked in again.

Even then, much of the BoR was incorporated in the 30's and 40's, long before the civil rights movement really grasped onto the 14th amendment. Once that happened, it definitely played a part in the incorporation of the remaining clauses, but most of the heavy lifting had already been done by then.

Well, certainly, I understand that, but the fact remains the Fourteenth Amendment has been codified for quite some time now. I will concede that others probably know much more about the case history and development of the Constitution but I think a great deal of that "development" was just creative interpretation by the judiciary in order to maintain the status quo. I read the Constitution as it is and how the Founders intended. I take a very dim view of judicial precedent when reading the Constitution because of the judiciary’s historical misapplication of the Constitution.

Click to expand...

And from that perspective, I think you're certainly right.

Floor statement of Sen. Bingham, sponsor of the 14th Amendment:

"Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States. Those eight amendments are as follows: [Here Mr. Bingham recited verbatim the first eight articles.]"

"These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment. The words of that amendment, 'no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,' are an express prohibition upon every State of the Union, which may be enforced under existing laws of Congress, and such other laws for their better enforcement as Congress may make."

Click to expand...

RightinNYC said:

Most stolen guns used in crimes come from halfway across the country. If every legal gun owner in Chi got rid of their guns tomorrow, it would barely (if at all) make a dent in the number of illegal guns use in crimes.

Click to expand...

Since it is basically illegal for anyone to own a handgun within city limits as of 1982, I vote that it wouldn't make a dent at all in the number of illegal guns on the streets.

This is not a case of Chicago "trying" to do something to end the crime here. It's been around since I was 5. This is a case of Chicago FAILING to do anything about the crime here for 27 long years.

If Chicago gives a rats ass about crime, why are our police officers without a contract... AGAIN. In a city where nobody but cops are allowed to use guns to defend themselves, you'd think they'd do their damnedest to keep these guys happy.

But no. they prefer to waste MY money fighting for a law that steals MY rights.

This has nothing to do with stopping crime and everything to do with giving the illusion that they are trying to do something about it.

Daley is a scumbag piece of **** who needs to be voted out of office as soon as humanly possible, but unfortunately, that isn't going to happen til the worthless bastard dies of a massive coronary over his wife bitching about the noise at Meigs Field.