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Thursday, August 20, 2009

Ind. Decisions - Another 7th Circuit post-Heller gun ruling

The decision is Justice v. Town of Cicero (ND Ill), written by Judge Wood (joined by Judges Tinder and Bauer), issued August 14th. Here, beginning on p. 9, is the discussion dealing with the 2nd amendment:

We now turn to Justice’s Second Amendment claim. The district court found that the Town’s ordinance requiring the registration of all firearms did not violate Justice’s constitutional rights because the Second Amendment does not regulate the activities of a state or its subdivisions, relying on this court’s decision in Quilici v. Village of Morton Grove, 695 F.2d 261, 269-71 (7th Cir. 1982). It noted that the Illinois Constitution subjects the right to bear arms to the police power, and that Illinois permits municipalities to regulate the possession of firearms to protect the public health, safety, and welfare. See Sklar v. Byrne, 727 F.2d 633, 637 (7th Cir. 1984).

Since the date of the district court’s opinion (October 10, 2007), there has been some water under the Second Amendment bridge. First, the Supreme Court decided District of Columbia v. Heller, 128 S. Ct. 2783 (2008), which struck down an ordinance of the District of Columbia that flatly prohibited the possession of handguns. Second, this court decided National Rifle Ass’n of America v. City of Chicago, 567 F.3d 856 (7th Cir. 2009), in which we concluded that the Second Amendment (under current Supreme Court law) is not one of the parts of the Bill of Rights that has been incorporated by the Fourteenth Amendment and thereby made applicable to the states. In NRA, we aligned ourselves with the Second Circuit’s decision in Maloney v. Cuomo, 554 F.3d 56 (2d Cir. 2009), and expressed disagreement with the Ninth Circuit’s reasoning in Nordyke v. King, 563 F.3d 439 (9th Cir. 2009).

If, as we have held, the Second Amendment does not apply to the states and their subdivisions, then Justice has no case. Even if we are wrong and the Ninth Circuit has proven to be the better predictor of the Supreme Court’s rulings, there is a critical distinction between the D.C. ordinance struck down in Heller and the Cicero ordinance. Cicero has not prohibited gun possession in the town. Instead, it has merely regulated gun possession under § 62-260 of its ordinance. The Town does prohibit the registration of some weapons, but there is no suggestion in the Complaint or the record that Justice’s guns fall within the group that may not be registered. See § 62-261. Nor does Heller purport to invalidate any and every regulation on gun use; to the contrary, the Court in Heller disclaims any such intent:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. . . . For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. . . . Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. [FN26: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.
128 S. Ct. at 2816-17 (citations omitted). Thus, even if we are wrong about incorporation, the Cicero ordinance, which leaves law-abiding citizens free to possess guns, appears to be consistent with the ruling in Heller.
Justice had sued the Town for confiscating his guns, citing him for possession of an unregistered firearm, and shutting down his business for one week. From near the beginning of the opinion:
After methodically explaining the problems with each of Justice’s allegations, the district court dismissed the entire complaint [ILB - including the 2nd amendment challenge to the Town’s ordinance requiring registration of firearms] for failure to state a claim under FED. R. CIV. P. 12(b)(6). We agree with the district court and therefore affirm the judgment for the defendants.

We review an order granting a Rule 12(b)(6) motion to dismiss de novo and affirm if the complaint fails to include sufficient facts “to state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Thus, both the recent Heller, and this term's Iqbal, are relied upon in this decision.

As of yet, there has been little, if any, press on this opinion. Dovid Kopel of The Volokh Conspiracy discusses the opinion in this entry this afternoon.

For background, see the prior ILB entries citing NRA v. City of Chicago.

Posted by Marcia Oddi on August 20, 2009 03:38 PM
Posted to Ind. (7th Cir.) Decisions