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United States: Federal Appeals Court Holds States May Restrict Handgun Ownership

(June 26, 2009) The United States Court of Appeals for the Seventh Circuit in Chicago has ruled that the right to have handguns in one's home, recently recognized by the Supreme Court, does not cover state or municipal laws regulating handguns.

In June 2008, the Supreme Court ruled in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), that the Constitution's Second Amendment protects a right to own handguns in one's home against restrictions imposed under the authority of the federal government. Afterwards, suits were brought against local municipalities in Illinois that had strict gun laws. These complaints were dismissed on the grounds that the Supreme Court had already held that the Second Amendment did not apply to the states (or municipal governments whose power is derived from state authority).

The plaintiffs appealed, contending that prior decisions regarding the application of the Second Amendment to the states were outdated or wrongly decided. They alternatively argued that the court should apply the Second Amendment against the states, using the precedent that the Fourteenth Amendment's Due Process Clause “selectively incorporates” certain rights that can be enforced against the states.

The Seventh Circuit rejected these arguments. The court said that lower courts must follow Supreme Court precedents, even those for which the rationale has since been undermined. On selective incorporation, the court said that deciding whether the right to possess handguns in one's home is the type of right “deeply rooted in this nation's history and tradition” and thus subject to the doctrine was a matter for the Supreme Court to decide.

One day after the Seventh Circuit issued its opinion, the plaintiff, the National Rifle Association, filed a petition for certiorari with the Supreme Court asking it to consider the selective incorporation issue. (National Rifle Association of America, Inc. v. Chicago, No. 08-4241 (7th Cir. June 2, 2009), available at
; Petition for Writ of Certiorari, National Rifle Association of America, Inc. v. Chicago, No. 08-1497 (June 3, 2009), available at