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Supreme Court to Decide Whether Second Amendment Forbids State and Local Gun Bans

The Supreme Court has agreed to review a lower court ruling upholding Chicago's handgun ban.   In 2008, the Supreme Court, in a 5-to-4 vote, struck down Washington, D.C.'s handgun ban.  But the Seventh Circuit Court of Appeals refused to apply that ruling to Chicago's handgun ban, saying that the Second Amendment only applies against the federal government, not state and local governments like Chicago.  A decision in McDonald v. Chicago is expected some time next year. The idea that the Second Amendment only applies against the federal government, not state and local governments, is a relic of the Cruikshank and Presser cases in the 19th Century, in which the Supreme Court stated that both the Bill of Rights in general, and the First and Second Amendments in particular, only apply against the federal government, not the states.  But by the 1930s, the Supreme Court had firmly rejected this rule under what is known as "incorporation," under which the Due Process Clause of the 14th Amendment was read by the courts to incorporate against state governments almost all of the rights contained in the Bill of Rights, such as First Amendment rights, the right to private property, and the right to be free of cruel and unusual punishment. The Seventh Circuit held that it was bound by the 19th Century decisions refusing to apply the Second Amendment against the states -- never mind that that their reasoning, and related ruling that the First Amendment applies only against the federal government, have been rejected by many subsequent decisions specifically ruling that free speech, as a right guaranteed by the Bill of Rights, applies to state and local governments, too, through incorporation under the Due Process Clause. Moreover, the Supreme Court's 19th Century gun decisions weren't even controlling, since they rejected a different argument than the one that the Chicago gun ban challengers recently made, as UCLA law professor Eugene Volokh notes. The Supreme Court in those cases only addressed the argument that the Privileges and Immunities clause of the Fourteenth Amendment protects against state restrictions, not the argument that the Due Process Clause protects against states.  By contrast, the challengers to Chicago's gun ban relied on the Due Process Clause, based on Supreme Court decisions after Presser holding that it incorporates against the states the guarantees of the Bill of Rights. The Seventh Circuit's using a Supreme Court case involving one argument to reject a different argument violated basic principles laid down by the Supreme Court itself.  The Supreme Court has warned that "cases cannot be read as foreclosing an argument that they never dealt with."See Waters v. Churchill, 511 U.S. 661, 678 (1994). The Supreme Court has emphasized this many times. See, e.g., Texas v. Cobb, 532 U.S. 162, 169 (2001) (“constitutional rights are not defined by inferences from opinions which did not address the question at issue”); Plaut v. Spendthrift Farm, 511 U.S. 211, 232 n.6 (1994) (“the unexplained silences of our decisions are not entitled to precedential weight”). Thus, the Supreme Court should reverse the Seventh Circuit's ruling in National Rifle Association v. City of Chicago, 567 F.3d 856 (7th Cir. 2009).