The must-read SCOTUSBlog alerts us to the following petition for certorari being granted by the United States Supreme Court:
Title: McDonald, et al. v. City of Chicago
Issue: Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.
- Opinion below (7th Circuit)
- Petition for certiorari (08-1521)
- Brief in opposition
- Petitioner’s reply (08-1521)
- Brief amicus curiae of Arms Keepers
- Brief amici curiae of Texas, et al
- Brief amicus curiae of National Shooting Sports Foundation, Inc.
- Brief amicus curiae of American Civil Rights Union
- Brief amici curiae of Institute for Justice, and Cato Institute
- Brief amicus curiae of California
- Brief amici curiae of Gun Owners of America, Inc.,et al.
- Brief amici curiae of Constitutional Law Professors
The Circuit Court opinion by Judge Easterbrook was an pitch-perfect example of judicial restraint:
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.
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 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.
Plaintiffs undoubtedly believe that Heller, which invalidated the District of Columbia’s handgun ban, gives them a good chance at having the state bans struck down as well.