NRA gun case appeal heads to high court

By Joan Biskupic, USA TODAY
WASHINGTON — One year after the Supreme Court ruled that the Second Amendment protects an individual right to keep handguns, the justices have before them a new test of that right.
The National Rifle Association has appealed a ruling from a U.S. appeals court in Chicago that said the right to bear arms cannot be invoked by gun owners challenging state and local firearm regulations. It said the high court's groundbreaking decision last term in a case from Washington, D.C., allows the Second Amendment to cover only regulations by the federal government — at least until the high court weighs in again.

If the justices decide to take up the appeal, it would probably be heard next fall by a bench that could include Supreme Court nominee Sonia Sotomayor, who is now on a federal appeals court in New York. She was part of a court panel in January that similarly held that the 2008 gun decision did not apply to state regulations.

A U.S. appeals court in San Francisco, however, ruled this year that the Second Amendment indeed covers state gun restrictions.

"Because of the split in opinions (on the breadth of the 2008 ruling), it seems likely that the court would take it," says Daniel Vice, a lawyer with the Brady Center to Prevent Gun Violence. He says a ruling could affect gun laws nationwide.

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The June 2008 decision, decided by a 5-4 vote, said for the first time that the Second Amendment protects an individual right to keep handguns at home for self-protection. A 1939 high court decision had led lower courts and many legal analysts to believe the Second Amendment covered firearm rights only for state militias such as National Guard units.

The new decision in National Rifle Association v. Chicago by the U.S. Court of Appeals for the 7th Circuit in Chicago, written by conservative Ronald Reagan appointee Frank Easterbrook, echoes the closely scrutinized decision from a three-judge panel of the U.S. appeals court for the 2nd Circuit that included Sotomayor.

She joined an opinion that rejected a challenge to a New York ban on certain weapons used in martial arts and emphasized that the high court has never specifically ruled that the Second Amendment can be applied to state regulations. That 2nd Circuit decision, Maloney v. Cuomo, provoked some gun rights groups to protest Sotomayor's nomination. The Virginia-based Gun Owners of America called her "an anti-gun radical."

Last Tuesday's decision by the 7th Circuit undercuts criticism that the Sotomayor panel decision was extreme. As Easterbrook wrote, specifically agreeing with the 2nd Circuit, the Supreme Court said in the 2008 case involving a District of Columbia handgun ban that it was not deciding whether the Second Amendment covered state or local regulations.

Justice Antonin Scalia, who authored the high court decision, noted that the case arose from the federal enclave of Washington, D.C., and that past cases said the Second Amendment covers only the federal government. With a new case from a state or municipality, the court could extend the reach of the Second Amendment.

Until then, Easterbrook wrote in the case involving handgun bans in Chicago and Oak Park, an appeals court may not "strike off on its own." He said that would undermine the uniformity of the nation's laws.

The NRA's Stephen Halbrook, representing Chicago and Oak Park residents who want to keep handguns at home, urged the justices to take up the 7th Circuit case to resolve the reach of last term's ruling.

Halbrook said the right to guns "allows one to protect life itself."