The BLT: 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.
We now have a growing disagreement between Circuits, with the 2nd and 7th saying the 2nd isn’t incorporated, and the 9th saying that it is.
I’d like to see this pushed as quickly as possible to the Supreme Court for a decision on the matter. Otherwise, Heller becomes just so much hot air.
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My understanding is that, strategically, this is a pretty good outcome for the RKBA crowd. This was a very quick decision that is a pretty clear sign that the 7th wants this to go to the SCOTUS. IMHO, there is a good chance that it will, and a chance that all three will be combined. If that happens, Sotomayor should have to recuse herself, since she ruled on one of those.
IANAL, so take from that what you want.
IANAL, but…
After reading the linked item, it would seem that the best shot at a SCOTUS decision that would resolve the split in the Circuit opinions - and might give the best shot at full incorporation - would be the N.Y. case, Maloney v. Rice, if the appeal is filed by the June 29 deadline, the Court agrees to hear it in order to address the split, and Sotomayor is confirmed to the Court and recuses herself (as she should, since she heard and ruled on the case at the Circuit level) -
A lot of ifs, of course - and then, what if the vote breaks 4 - 4 at the conclusion of the hearing at the Supreme Court?
Something else occurred to me, re: the whole incorporation issue - can the fact that many of the states have Constitutional language of their own that closely mimics (and is, in some cases, even clearer than) the phraseology of the Second come into play in any way? I admit to not knowing how language in a state Constitution that is quite similar to , and clearly has the same intent as part of the Federal Constitution might (or might not) affect a Circuit ruling…