by Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center

Today, the Seventh Circuit Court of Appeals issued a unanimous ruling in the gun-rights case McDonald et al. v. City of Chicago et al., agreeing with the Second Circuit Court of Appeals that the individual right to possess a gun for self-defense protected in the Second Amendment as recognized by the Supreme Court last term in Heller is not “incorporated” into the 14th Amendment to apply to state and local governments. (See here for more on the case and CAC’s brief supporting incorporation via the Privileges or Immunities Clause.)

The Seventh Circuit decision, authored by Chief Judge Easterbrook, came lightning-fast—just a week after the court heard oral argument in the case—and followed along much of the same lines of reasoning expressed during the judges’ questions at the oral argument (for an excellent discussion of the oral argument, see Professor Michael Lawrence’s blog post). Today, the court stated that, whatever the merits of the various incorporation arguments, it was ultimately up to the Supreme Court to find incorporation and overrule precedent suggesting that the Second Amendment is not binding on state and local governments.

The court’s swift ruling puts the Chicago case on the fast track to the Supreme Court, certainly outpacing the Ninth Circuit ruling in Nordyke v. King, which held that the Second Amendment self-defense right was incorporated against the States and with which the Seventh Circuit ruling disagrees. Nordyke is currently under review by the full Ninth Circuit; briefs from the parties regarding whether the Ninth Circuit should reconsider Nordyke “en banc” are due on June 8.

In addition to being a boon to gun-rights advocates eager to get this case before the Supreme Court, the Seventh Circuit’s ruling is also likely to be welcomed by supporters of Judge Sonia Sotomayor’s confirmation to the Supreme Court. Some gun-rights advocates have expressed concern with Judge Sotomayor’s nomination, citing her participation in the Second Circuit Maloney v. Cuomo case, which involved a Second Amendment challenge to a New York weapons law (although the “arms” that Maloney wanted to “keep and bear” happened to be numchucks, not firearms). The three-judge panel in Maloney issued a brief, unanimous, unsigned opinion holding that the Second Amendment did not apply to the States, citing Supreme Court precedent. The Seventh Circuit’s ruling today expressly agrees with Maloney, which puts two of the leading lights of the conservative judiciary—Judge Richard Posner and Chief Judge Frank Easterbrook—squarely in Sotomayor’s corner when it comes to the question of whether lower courts of appeal can apply the protections of the Second Amendment against state and local laws.

If Judge Sotomayor is confirmed and the Court decides to review McDonald, Justice Sotomayor and her colleagues will be forced to confront the issue the McDonald and Maloney panels both decided to kick upstairs. Hopefully, at that time, all the justices will respect the answer compelled by Constitutional text and history: that the Second Amendment is incorporated against the states through the 14th Amendment’s Privileges or Immunities Clause.