Quote:
In the
United States Court of Appeals For the Seventh Circuit
Nos. 08-4241, 08-4243 & 08-4244
NATIONAL RIFLE ASSOCIATION OF AMERICA, INC., et al.,Plaintiffs-Appellants,
v.
CITY OF CHICAGO, ILLINOIS, and VILLAGE OF OAK PARK, ILLINOIS, Defendants-Appellees.
Appeals from the United States District Court for the Northern District of Illinois, Eastern Division.
Nos. 08 C 3645 et al.—Milton I. Shadur, Judge.
ARGUED MAY 26, 2009—DECIDED JUNE 2, 2009
Before EASTERBROOK, Chief Judge, and BAUER and POSNER, Circuit Judges.
EASTERBROOK, Chief Judge. 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).
Cruikshank, Presser, and Miller rejected arguments that depended on the privileges and immunities clause of the fourteenth amendment. The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), holds that the privileges and immunities clause does not apply the Bill of Rights, en bloc, to the states. Plaintiffs respond in two ways: first they contend that Slaughter-House Cases was wrongly decided; second, recognizing that we must apply that decision even if we think it mistaken, plaintiffs contend that we may use the Court’s “selective incorporation” approach to the second amendment. Cruikshank, Presser, and Miller did not consider that possibility, which had yet to be devised when those decisions were rendered. Plaintiffs ask us to follow Nordyke v. King, 563 F.3d 439 (9th Cir. 2009), which concluded that Cruikshank, Presser, and Miller may be bypassed as fossils. (Nordyke applied the second amendment to the states but held that local governments may exclude weapons from public buildings and parks.) Another court of appeals has concluded that Cruikshank, Presser, and Miller still control even though their reasoning is obsolete. Nos. 08-4241, 08-4243 & 08-4244 3 Maloney v. Cuomo, 554 F.3d 56 (2d Cir. 2009). We agree with Maloney, which followed our own decision in Quilici v. Morton Grove, 695 F.2d 261 (7th Cir. 1982).
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. “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of
decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v.
Shearson/American Express, Inc., 490 U.S. 477, 484 (1989). Cruikshank, Presser, and Miller have “direct application in [this] case”. Plaintiffs say that a decision of the Supreme Court has “direct application” only if the opinion expressly considers the line of argument that has been offered to support a different approach. Yet few opinions address the ground that later opinions deem sufficient to reach a different result. If a court of appeals could disregard a decision of the Supreme Court by identifying, and accepting, one or another contention not expressly addressed by the Justices, the Court’s decisions could be circumvented with ease. They would bind only judges too dim-witted to come up with a novel argument.
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 4 Nos. 08-4241, 08-4243 & 08-4244 n.23. The Court did not say that Cruikshank, Presser, and Miller rejected a particular argument for applying the second amendment to the states. It said that they hold “that the Second Amendment applies only to the Federal Government.” The Court added that “Cruikshank’s continuing validity on incorporation” is “a question not presented by this case”. Ibid. That does not license the inferior courts to go their own ways; it just notes that Cruikshank is open to reexamination by the Justices themselves when the time
comes. If a court of appeals may strike off on its own, this not only undermines the uniformity of national law but also may compel the Justices to grant certiorari before they think the question ripe for decision.
State Oil Co. v. Khan, 522 U.S. 3 (1997), illustrates the proper relation between the Supreme Court and a court of appeals. After Albrecht v. Herald Co., 390 U.S. 145 (1968), held that antitrust laws condemn all vertical maximum price fixing, other decisions (such as Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977)) demolished Albrecht’s intellectual underpinning. Meanwhile new economic analysis showed that requiring dealers to charge no more than a prescribed maximum price could benefit consumers, a possibility that Albrecht had not considered. Thus by the time Khan arrived on appeal, Albrecht’s rationale
had been repudiated by the Justices, and new arguments that the Albrecht opinion did not mention strongly supported an outcome other than the one that Albrecht announced. Nonetheless, we concluded that only the Justices could inter Albrecht. See Khan v. State Oil Co., 93 F.3d 1358 (7th Cir. 1996). By plaintiffs’ lights, we should
have treated Albrecht as defunct and reached what we Nos. 08-4241, 08-4243 & 08-4244 5 deemed a better decision. Instead we pointed out Albrecht’s shortcomings while enforcing its holding. The Justices, who overruled Albrecht in a unanimous opinion, said that we had done exactly the right thing, “for it is this Court’s prerogative alone to overrule one of its precedents.” 522 U.S. at 20. See also, e.g., Eberhart v. United States, 546 U.S. 12 (2005).
What’s more, the proper outcome of this case is not as
straightforward as the outcome of Khan. Although the
rationale of Cruikshank, Presser, and Miller is defunct, the
Court has not telegraphed any plan to overrule Slaughter-
House and apply all of the amendments to the states
through the privileges and immunities clause, despite
scholarly arguments that it should do this. See Akhil Reed
Amar, America’s Constitution: A Biography 390–92 (2005)
(discussing how the second amendment relates to the
privileges and immunities clause). The prevailing approach
is one of “selective incorporation.” Thus far neither the
third nor the seventh amendment has been applied to the
states—nor has the grand jury clause of the fifth amendment
or the excessive bail clause of the eighth. How the
second amendment will fare under the Court’s selective
(and subjective) approach to incorporation is hard to
predict.
Nordyke asked whether the right to keep and bear arms
is “deeply rooted in this nation’s history and tradition.”
Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997). It
gave an affirmative answer. Suppose the same question
were asked about civil jury trials. That institution also has
deep roots, yet the Supreme Court has not held that the
6 Nos. 08-4241, 08-4243 & 08-4244
states are bound by the seventh amendment. Meanwhile
the Court’s holding that double-jeopardy doctrine is not
“so rooted in the traditions and conscience of our people as
to be ranked as fundamental,” Palko v. Connecticut, 302 U.S.
319, 325 (1937) (concluding that it is enough for the state to
use res judicata to block relitigation of acquittals), was
overruled in an opinion that paid little heed to history.
Benton v. Maryland, 395 U.S. 784 (1969). “Selective incorporation”
thus cannot be reduced to a formula.
Plaintiffs’ reliance on William Blackstone, 1 Commentaries
on the Laws of England *123–24, for the proposition that the
right to keep and bear arms is “deeply rooted” not only
slights the fact that Blackstone was discussing the law of
another nation but also overlooks the reality that
Blackstone discussed arms-bearing as a political rather than
a constitutional right. The United Kingdom does not have a
constitution that prevents Parliament and the Queen from
matching laws to current social and economic circumstances,
as the people and their representatives understand
them. It is dangerous to rely on Blackstone (or for that
matter modern European laws banning handguns) to show
the meaning of a constitutional amendment that this nation
adopted in 1868. See Nicholas Quinn Rosenkranz, Condorcet
and the Constitution, 59 Stan. L. Rev. 1281 (2007). Blackstone
also thought determinate criminal sentences (e.g., 25 years,
neither more nor less, for robbing a post office) a vital
guarantee of liberty. 4 Commentaries *371–72. That’s not a
plausible description of American constitutional law.
One function of the second amendment is to prevent the
national government from interfering with state militias. It
Nos. 08-4241, 08-4243 & 08-4244 7
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).
Our hypothetical is not as farfetched as it sounds. Selfdefense
is a common-law gloss on criminal statutes, a
defense that many states have modified by requiring
people to retreat when possible, and to use non-lethal force
when retreat is not possible. Wayne R. LaFave, 2 Substantive
Criminal Law §10.4 (2d ed. 2003). An obligation to avoid
lethal force in self-defense might imply an obligation to use
pepper spray rather than handguns. A modification of the
self-defense defense may or may not be in the best interest
of public safety—whether guns deter or facilitate crime is
8 Nos. 08-4241, 08-4243 & 08-4244
an empirical question, compare John R. Lott, Jr., More Guns,
Less Crime (2d ed. 2000), with Paul H. Rubin & Hashem
Dzehbakhsh, The effect of concealed handgun laws on crime, 23
International Rev. L. & Econ. 199 (2003), and Mark Duggan,
More Guns, More Crime, 109 J. Pol. Econ. 1086 (2001)—but it
is difficult to argue that legislative evaluation of which
weapons are appropriate for use in self-defense has been
out of the people’s hands since 1868. The way to evaluate
the relation between guns and crime is in scholarly journals
and the political process, rather than invocation of ambiguous
texts that long precede the contemporary debate. See
Clark v. Arizona, 548 U.S. 735 (2006) (state may reformulate,
and effectively abolish, insanity defense); Martin v. Ohio,
480 U.S. 228 (1987) (state may assign to defendant the
burden of raising, and proving, self-defense).
Chicago and Oak Park are poorly placed to make these
arguments. After all, Illinois has not abolished self-defense
and has not expressed a preference for long guns over
handguns. But the municipalities can, and do, stress
another of the themes in the debate over incorporation of
the Bill of Rights: 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. See New State
Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J.,
dissenting) (“It is one of the happy incidents of the federal
system that a single courageous State may, if its citizens
choose, serve as a laboratory; and try novel social and
economic experiments without risk to the rest of the
country.”); Crist v. Bretz, 437 U.S. 28, 40–53 (1978) (Powell,
J., dissenting) (arguing that only “fundamental” liberties
Nos. 08-4241, 08-4243 & 08-4244 9
should be incorporated, and that even for incorporated
amendments the state and federal rules may differ); Robert
Nozick, Anarchy, State, and Utopia (1974). 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.
AFFIRMED
6-2-09
