Seventh Circuit: 2nd Doesn't Apply to States!

Seventh Circuit: 2nd Doesn't Apply to States!

This is a discussion on Seventh Circuit: 2nd Doesn't Apply to States! within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; * JUNE 2, 2009, 7:58 P.M. ET Federal Court Says States Can Regulate Guns By JESS BRAVIN (WSJ) A federal appeals court in Chicago ruled ...

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Thread: Seventh Circuit: 2nd Doesn't Apply to States!

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    Thumbs down Seventh Circuit: 2nd Doesn't Apply to States!

    * JUNE 2, 2009, 7:58 P.M. ET

    Federal Court Says States Can Regulate Guns


    By JESS BRAVIN (WSJ)

    A federal appeals court in Chicago ruled today that the Second Amendment doesn't bar state or local governments from regulating guns, adopting the same position that Judge Sonia Sotomayor, President Barack Obama's nominee to the Supreme Court, did when faced with the same question earlier this year.

    Last year, the U.S. Supreme Court cited the Second Amendment to strike down a handgun ban adopted in 1976 by the Washington, D.C., City Council. The court, by a 5-4 vote, found that the amendment protected from federal infringement an individual right to "keep and bear arms."

    The decision applied only to the District of Columbia, a federal enclave that is not a state. It left open whether the amendment also limits the powers of state government.

    A string of 19th century Supreme Court decisions limited application of the Bill of Rights to state governments. During the 20th century, the Supreme Court held that certain constitutional rights, but not the Second Amendment, could be enforced against the states.

    Gun-rights groups challenged ordinances in Chicago and Oak Park, Ill., as unconstitutional in light of the Supreme Court's decision last year. A federal district judge rejected their arguments, a decision affirmed Tuesday by the Seventh U.S. Circuit Court of Appeals.

    Writing for a three-judge panel, Judge Frank Easterbrook observed that an 1886 Supreme Court decision limited the Second Amendment to the federal government. While that decision might be a "fossil," the lower courts have no power to overrule a Supreme Court opinion even if they suspect the high court may be inclined to do so itself. It was "hard to predict" what the Supreme Court would do should it consider the question in future, Judge Easterbrook wrote.

    Judge Easterbrook and the two other Seventh Circuit judges were all appointed by Republican presidents. Judge Easterbrook wrote that they agreed with an unsigned Second Circuit opinion that in January rejected a Second Amendment challenge to a New York state law barring possession of nunchuka sticks, a martial arts weapon. That panel, in New York, included Judge Sotomayor and two other judges appointed by President Bill Clinton.

    In San Francisco, however, a Ninth Circuit panel earlier this year held that the Second Amendment applies to state governments, even as it upheld a local ordinance banning guns from county property. One judge was appointed by a Republican president, the other two by Democrats.

    Were they to follow the Ninth Circuit's reasoning, Supreme Court "decisions could be circumvented with ease," Judge Easterbrook wrote. "They would bind only judges too dim-witted to come up with a novel argument."

    The split among the circuits increases the likelihood that the Supreme Court will step in decide the Second Amendment's application to state weapons laws.

    If confirmed to the Supreme Court, Judge Sotomayor would not be bound by prior high court decisions and could provide her own analysis of the Second Amendment's application.

    Looks like the Seventh, Ninth and the Second Circuits have now set up a USSC hearing!


    As soon as the full ruling is available I'll link to it or post it herein.

    Arghhhhhhhh!

    Note they placed great weight on the 1886 Presser case.


    The tyrant dies and his rule is over, the martyr dies and his rule begins. ― The Journals of Kierkegaard


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    I wonder if an en banc hearing by the full circuit court is contemplated? Not saying it should or should not be, just curious.
    If the public are bound to yield obedience to laws to which they cannot give their approbation, they are slaves to those who make such laws and enforce them.--Samuel Adams as Candidus, Boston Gazette 20 Jan. 1772

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    Quote Originally Posted by Rock and Glock View Post
    Note they placed great weight on the 1886 Presser case.
    Yes, that fossilized opinion. Note that judges also place great weight on the 1788 Constitution.

    Maybe we should throw out all those old opinions and documents.

  4. #4
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    From the Blog of Legal Times:

    7th Circuit Ruling Agrees With Sotomayor on Second Amendment

    The U.S. Court of Appeals for the 7th Circuit today ruled that the Second Amendment right to bear arms cannot be held to restrict state gun control laws until the Supreme Court rules that the right applies to the states.

    As a result, the ruling in National Rifle Association v. Chicago will likely give Supreme Court nominee Sonia Sotomayor some much-needed political cover against criticism of a similar Second Amendment ruling she joined in on the 2nd Circuit earlier this year, Maloney v. Cuomo. In that case, using the same reasoning, the 2nd Circuit panel upheld a New York ban on numchucks, weapons made of two bars joined by a cord. Today's ruling by 7th Circuit chief judge Frank Easterbrook specifically states, "We agree with Maloney." Judge Richard Posner, like Easterbrook a leading conservative on the court, joined the ruling as did Judge William Bauer.

    "It can't be a big strike against her that she decided it was not in her authority to incorporate the Second Amendment against the states," said Doug Kendall of the Constitutional Accountability Center, which argued in favor of incorporation in the Chicago case on the basis of the Constitution's "privileges or immunities" clause.

    The Easterbrook decision noted that the Supreme Court in last year's D.C. v. Heller decision, which struck down a D.C. handgun ban, nonetheless left open whether the right to bear arms applies to state regulation. Since nineteenth century precedents that went against incorporation still stand, Easterbrook said appeals courts are not entitled to "strike off on their own." As a result, the 7th Circuit panel declined to apply Heller to laws in Chicago and Oak Park Illinois that ban the possession of most handguns. How and whether to apply a right to states is "for the justices rather than a court of appeals," Easterbrook wrote. The nine-page decision was issued a week after the case was argued.

    The ruling today deepens a circuit split on the issue that will almost certainly draw the attention of the Supreme Court. While both the New York and Chicago rulings go against incorporation, the 9th Circuit's decision April 20 in Nordyke v. King did apply the Second Amendment to the states. Nordyke is under consideration for en banc review. Petitioners in the New York case, now titled Maloney v. Rice, have until June 29 to file their appeal to the Supreme Court. If that is the case the Court agrees to review to resolve the split, and if Sotomayor is confirmed as a justice, custom would keep her from participating because she ruled on it below. But if another case becomes the vehicle for the next major Second Amendment ruling, she could join in.


    The tyrant dies and his rule is over, the martyr dies and his rule begins. ― The Journals of Kierkegaard

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    Here's the full opinion filed today:

    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
    Last edited by Rock and Glock; June 3rd, 2009 at 12:15 PM.


    The tyrant dies and his rule is over, the martyr dies and his rule begins. ― The Journals of Kierkegaard

  6. #6
    VIP Member Array Blackeagle's Avatar
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    Well, that was quick.

    Quote Originally Posted by NRA
    NRA Appeals Seventh Circuit Ruling to the U.S. Supreme Court

    Wednesday, June 03, 2009

    Fairfax, Va. – Today, the National Rifle Association filed a petition for certiorari to the U.S. Supreme Court in the case of NRA v. Chicago. The NRA strongly disagrees with yesterday's decision issued by a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, holding that the Second Amendment does not apply to state and local governments.

    “The Seventh Circuit got it wrong. As the Supreme Court said in last year's landmark Heller decision, the Second Amendment is an individual right that ‘belongs to all Americans'. Therefore, we are taking our case to the highest court in the land,” said Chris W. Cox, NRA chief lobbyist. “The Seventh Circuit claimed it was bound by precedent from previous decisions. However, it should have followed the lead of the recent Ninth Circuit Court of Appeals decision in Nordyke v. Alameda County, which found that those cases don't prevent the Second Amendment from applying to the states through the due process clause of the Fourteenth Amendment.”

    This Seventh Circuit opinion upholds current bans on the possession of handguns in Chicago and Oak Park, Illinois.

    “It is wrong that the residents of Chicago and Oak Park continue to have their Second Amendment rights denied,” Cox concluded. “It’s time for the fundamental right of self-defense to be respected by every jurisdiction throughout our country.”

    -NRA-

    NRA-ILA :: NRA Appeals Seventh Circuit Ruling to the U.S. Supreme Court

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    VIP Member Array Eagleks's Avatar
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    They are going to keep seeing how far they can 'push it' and whether they can get a favorable ruling... even if they have to stack the courts to do it.

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    Unfortunately a lot of the sheeple here seem to like it.

    Currently open survey on WGN Radio shows:

    NewsClick
    A U.S. Court of Appeals has upheld Chicago's ban on handguns.
    Good! The last thing we need is more guns... (242 responses)
    62.7%

    Bad! You should be able to carry a concealed weapon. (144 responses)
    37.3%

    386 total responses

    (Results not scientific)




    If you wish to weigh in, some of us Flatlanders would appreciate the help - Chicago News, Chicago Sports, Traffic and Weather -- wgnradio.com - WGN Radio

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    Maybe I am not understanding something correctly but it seems to me that there is nothing specifically in the amendment that states it only applies to the federal government. So if that is the case what prevents municipalities or state governments from making laws that trump any particular amendment and citing this case to say the amendments only apply to the federal government. I imagine if a state decided to outlaw the income tax a federal court would dismiss the law as being absurd and against the 16th amendment.

    As for the poll, 400 people is not a very impressive sample size but that is the case with most polls

  11. #11
    VIP Member Array Blackeagle's Avatar
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    Quote Originally Posted by natticarry View Post
    Maybe I am not understanding something correctly but it seems to me that there is nothing specifically in the amendment that states it only applies to the federal government. So if that is the case what prevents municipalities or state governments from making laws that trump any particular amendment and citing this case to say the amendments only apply to the federal government.
    There's nothing in any of the amendments in the Bill of Rights that says they apply to the states either (except for the 10th, of course). Indeed, for the first eighty years of this country's history, they didn't. States could suppress free speech, establish religion, inflict cruel and unusual punishment, etc., limited only by their own state constitutuions. However, after the Fourteenth Amendment was passed, courts gradually interpreted the amendment's Due Process clause as applying the Bill of Rights to the states. However, they didn't do this in a blanket fashion, instead in specific cases they "incorporated" specific amendments or parts of amendments. Most of the bill of rights has been incorporated by various decisions. A few parts have been specifically not ruled to be incorporated (the Fifth Amendment's right to a grand jury, for example). A few parts have not been incorporated, largely due to lack of case law on that particular issue (the Third Amendment doesn't come up much).

    The Second Amendment was ruled not to be incorporated in a case called United States v. Cruikshank. However, that same case ruled the First Amendment wasn't incorporated. The 1A part of the ruling has long since been overturned (a fact that was specifically pointed out in the Heller decision).

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    Senior Member Array press1280's Avatar
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    [QUOTE=bigdipper;1173936]Unfortunately a lot of the sheeple here seem to like it.

    Currently open survey on WGN Radio shows:

    NewsClick
    A U.S. Court of Appeals has upheld Chicago's ban on handguns.
    Good! The last thing we need is more guns... (242 responses)
    62.7%

    Bad! You should be able to carry a concealed weapon. (144 responses)
    37.3%

    386 total responses

    (Results not scientific)




    I think that's a poorly worded survey. This case has nothing to do with carrying concealed weapons. They should have had that answer be "Bad! People should be able to keep a functional handgun in their own home".
    Always be careful with these surveys, there's always an angle. And let's say the pro-gun side starts winning, watch them pull the poll down or re-word it to again reflect what THEY want it to reflect.
    "The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree..."
    Nunn v. State GA 1848

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