                             In the

United States Court of Appeals
              For the Seventh Circuit

Nos. 08-4241, 08-4243 & 08-4244

N ATIONAL R IFLE A SSOCIATION OF A MERICA, INC., et al.,

                                              Plaintiffs-Appellants,
                                 v.



C ITY OF C HICAGO, ILLINOIS, and
V ILLAGE OF O AK P ARK , ILLINOIS,
                                             Defendants-Appellees.


        Appeals from the United States District Court for the
          Northern District of Illinois, Eastern Division.
          Nos. 08 C 3645 et al.—Milton I. Shadur, Judge.



        A RGUED M AY 26, 2009—D ECIDED JUNE 2, 2009




  Before E ASTERBROOK, Chief Judge, and B AUER and P OSNER,
Circuit Judges.
  E ASTERBROOK, Chief Judge. Two municipalities in Illinois
ban the possession of most handguns. After the Supreme
Court held in District of Columbia v. Heller, 128 S. Ct. 2783
(2008), that the second amendment entitles people to keep
2                           Nos. 08-4241, 08-4243 & 08-4244

handguns at home for self-protection, several suits were
filed against Chicago and Oak Park. All were dismissed on
the ground that Heller dealt with a law enacted under the
authority of the national government, while Chicago and
Oak Park are subordinate bodies of a state. The Supreme
Court has rebuffed requests to apply the second amend-
ment to the states. See United States v. Cruikshank, 92 U.S.
542 (1876); Presser v. Illinois, 116 U.S. 252 (1886); Miller v.
Texas, 153 U.S. 535 (1894). The district judge thought that
only the Supreme Court may change course. 2008 U.S. Dist.
L EXIS 98134 (N.D. Ill. Dec. 4, 2008).
  Cruikshank, Presser, and Miller rejected arguments that
depended on the privileges and immunities clause of the
fourteenth amendment. The Slaughter-House Cases, 83 U.S.
(16 Wall.) 36 (1873), holds that the privileges and immuni-
ties clause does not apply the Bill of Rights, en bloc, to the
states. Plaintiffs respond in two ways: first they contend
that Slaughter-House Cases was wrongly decided; second,
recognizing that we must apply that decision even if we
think it mistaken, plaintiffs contend that we may use the
Court’s “selective incorporation” approach to the second
amendment. Cruikshank, Presser, and Miller did not con-
sider that possibility, which had yet to be devised when
those decisions were rendered. Plaintiffs ask us to follow
Nordyke v. King, 563 F.3d 439 (9th Cir. 2009), which con-
cluded that Cruikshank, Presser, and Miller may be bypassed
as fossils. (Nordyke applied the second amendment to the
states but held that local governments may exclude
weapons from public buildings and parks.) Another court
of appeals has concluded that Cruikshank, Presser, and
Miller still control even though their reasoning is obsolete.
Nos. 08-4241, 08-4243 & 08-4244                            3

Maloney v. Cuomo, 554 F.3d 56 (2d Cir. 2009). We agree with
Maloney, which followed our own decision in Quilici v.
Morton Grove, 695 F.2d 261 (7th Cir. 1982).
  Repeatedly, in decisions that no one thinks fossilized, the
Justices have directed trial and appellate judges to imple-
ment 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 preroga-
tive 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 accept-
ing, 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.
   Anyone who doubts that Cruikshank, Presser, and Miller
have “direct application in [this] case” need only read
footnote 23 in Heller. It says that Presser and Miller “reaf-
firmed [Cruikshank’s holding] that the Second Amendment
applies only to the Federal Government.” 128 S. Ct. at 2813
4                           Nos. 08-4241, 08-4243 & 08-4244

n.23. The Court did not say that Cruikshank, Presser, and
Miller rejected a particular argument for applying the
second amendment to the states. It said that they hold
“that the Second Amendment applies only to the Federal
Government.” The Court added that “Cruikshank’s continu-
ing validity on incorporation” is “a question not presented
by this case”. Ibid. That does not license the inferior courts
to go their own ways; it just notes that Cruikshank is open
to reexamination by the Justices themselves when the time
comes. If a court of appeals may strike off on its own, this
not only undermines the uniformity of national law but
also may compel the Justices to grant certiorari before they
think the question ripe for decision.
  State Oil Co. v. Khan, 522 U.S. 3 (1997), illustrates the
proper relation between the Supreme Court and a court of
appeals. After Albrecht v. Herald Co., 390 U.S. 145 (1968),
held that antitrust laws condemn all vertical maximum
price fixing, other decisions (such as Continental T.V., Inc.
v. GTE Sylvania Inc., 433 U.S. 36 (1977)) demolished
Albrecht’s intellectual underpinning. Meanwhile new
economic analysis showed that requiring dealers to charge
no more than a prescribed maximum price could benefit
consumers, a possibility that Albrecht had not considered.
Thus by the time Khan arrived on appeal, Albrecht’s ratio-
nale had been repudiated by the Justices, and new argu-
ments that the Albrecht opinion did not mention strongly
supported an outcome other than the one that Albrecht
announced. Nonetheless, we concluded that only the
Justices could inter Albrecht. See Khan v. State Oil Co., 93
F.3d 1358 (7th Cir. 1996). By plaintiffs’ lights, we should
have treated Albrecht as defunct and reached what we
Nos. 08-4241, 08-4243 & 08-4244                                 5

deemed a better decision. Instead we pointed out Albrecht’s
shortcomings while enforcing its holding. The Justices,
who overruled Albrecht in a unanimous opinion, said that
we had done exactly the right thing, “for it is this Court’s
prerogative alone to overrule one of its precedents.” 522
U.S. at 20. See also, e.g., Eberhart v. United States, 546 U.S. 12
(2005).
  What’s more, the proper outcome of this case is not as
straightforward as the outcome of Khan. Although the
rationale of Cruikshank, Presser, and Miller is defunct, the
Court has not telegraphed any plan to overrule Slaughter-
House and apply all of the amendments to the states
through the privileges and immunities clause, despite
scholarly arguments that it should do this. See Akhil Reed
Amar, America’s Constitution: A Biography 390–92 (2005)
(discussing how the second amendment relates to the
privileges and immunities clause). The prevailing approach
is one of “selective incorporation.” Thus far neither the
third nor the seventh amendment has been applied to the
states—nor has the grand jury clause of the fifth amend-
ment or the excessive bail clause of the eighth. How the
second amendment will fare under the Court’s selective
(and subjective) approach to incorporation is hard to
predict.
  Nordyke asked whether the right to keep and bear arms
is “deeply rooted in this nation’s history and tradition.”
Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997). It
gave an affirmative answer. Suppose the same question
were asked about civil jury trials. That institution also has
deep roots, yet the Supreme Court has not held that the
6                           Nos. 08-4241, 08-4243 & 08-4244

states are bound by the seventh amendment. Meanwhile
the Court’s holding that double-jeopardy doctrine is not
“so rooted in the traditions and conscience of our people as
to be ranked as fundamental,” Palko v. Connecticut, 302 U.S.
319, 325 (1937) (concluding that it is enough for the state to
use res judicata to block relitigation of acquittals), was
overruled in an opinion that paid little heed to history.
Benton v. Maryland, 395 U.S. 784 (1969). “Selective incorpo-
ration” thus cannot be reduced to a formula.
  Plaintiffs’ reliance on William Blackstone, 1 Commentaries
on the Laws of England *123–24, for the proposition that the
right to keep and bear arms is “deeply rooted” not only
slights the fact that Blackstone was discussing the law of
another nation but also overlooks the reality that
Blackstone discussed arms-bearing as a political rather than
a constitutional right. The United Kingdom does not have a
constitution that prevents Parliament and the Queen from
matching laws to current social and economic circum-
stances, as the people and their representatives understand
them. It is dangerous to rely on Blackstone (or for that
matter modern European laws banning handguns) to show
the meaning of a constitutional amendment that this nation
adopted in 1868. See Nicholas Quinn Rosenkranz, Condorcet
and the Constitution, 59 Stan. L. Rev. 1281 (2007). Blackstone
also thought determinate criminal sentences (e.g., 25 years,
neither more nor less, for robbing a post office) a vital
guarantee of liberty. 4 Commentaries *371–72. That’s not a
plausible description of American constitutional law.
  One function of the second amendment is to prevent the
national government from interfering with state militias. It
Nos. 08-4241, 08-4243 & 08-4244                            7

does this by creating individual rights, Heller holds, but
those rights may take a different shape when asserted
against a state than against the national government.
Suppose Wisconsin were to decide that private ownership
of long guns, but not handguns, would best serve the
public interest in an effective militia; it is not clear that
such a decision would be antithetical to a decision made in
1868. (The fourteenth amendment was ratified in 1868,
making that rather than 1793 the important year for
determining what rules must be applied to the states.)
Suppose a state were to decide that people cornered in
their homes must surrender rather than fight back—in
other words, that burglars should be deterred by the
criminal law rather than self help. That decision would
imply that no one is entitled to keep a handgun at home for
self-defense, because self-defense would itself be a crime,
and Heller concluded that the second amendment protects
only the interests of law-abiding citizens. See United States
v. Jackson, 555 F.3d 635 (7th Cir. 2009) (no constitutional
right to have guns ready to hand when distributing illegal
drugs).
  Our hypothetical is not as farfetched as it sounds. Self-
defense is a common-law gloss on criminal statutes, a
defense that many states have modified by requiring
people to retreat when possible, and to use non-lethal force
when retreat is not possible. Wayne R. LaFave, 2 Substan-
tive Criminal Law §10.4 (2d ed. 2003). An obligation to avoid
lethal force in self-defense might imply an obligation to use
pepper spray rather than handguns. A modification of the
self-defense defense may or may not be in the best interest
of public safety—whether guns deter or facilitate crime is
8                           Nos. 08-4241, 08-4243 & 08-4244

an empirical question, compare John R. Lott, Jr., More Guns,
Less Crime (2d ed. 2000), with Paul H. Rubin & Hashem
Dzehbakhsh, The effect of concealed handgun laws on crime, 23
International Rev. L. & Econ. 199 (2003), and Mark Duggan,
More Guns, More Crime, 109 J. Pol. Econ. 1086 (2001)—but it
is difficult to argue that legislative evaluation of which
weapons are appropriate for use in self-defense has been
out of the people’s hands since 1868. The way to evaluate
the relation between guns and crime is in scholarly journals
and the political process, rather than invocation of ambigu-
ous texts that long precede the contemporary debate. See
Clark v. Arizona, 548 U.S. 735 (2006) (state may reformulate,
and effectively abolish, insanity defense); Martin v. Ohio,
480 U.S. 228 (1987) (state may assign to defendant the
burden of raising, and proving, self-defense).
   Chicago and Oak Park are poorly placed to make these
arguments. After all, Illinois has not abolished self-defense
and has not expressed a preference for long guns over
handguns. 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
Nos. 08-4241, 08-4243 & 08-4244                          9

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.
                                                A FFIRMED




                           6-2-09
