After attacking liberal "totalitarians" for supporting a federal appellate court's ruling that the Second Amendment does not apply to state and local governments, Bill O'Reilly falsely suggested that "270 years" of Supreme Court precedent supports his position. In fact, the appellate court - including two conservative Reagan nominees - cited Supreme Court precedents dating to 1876 in their opinion.
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From segments on the March 2 edition of Fox News' The O'Reilly Factor regarding the Supreme Court's hearing on National Rifle Association v. Chicago, in which the 7th U.S. Circuit Court of Appeals upheld a Chicago ban on some handguns:
O'REILLY: But the city says [plaintiff Otis] McDonald has no right to have a handgun, thus the Supreme Court case. Incredibly, the very liberal New York Times, which is supposed to champion individual liberty, editorialized this today, quote: "The Bill of Rights once was largely thought to be a set of limitations on the federal government. Does the right to bear arms apply against city and state governments as well?"
Of course it does. Are you telling me the City of Chicago could restrict freedom of speech in violation of the Constitution? The case isn't even close. And I predict the court will rule 5 to 4 that Otis McDonald can own a handgun. But the four justices who would violate Mr. McDonald's rights are troubling. Because they don't like guns, they don't like the Second Amendment and, therefore, would restrict it. That, ladies and gentlemen, is an assault on individual freedom. It's interesting that in America today the far left that wants the government to call the shots, not the folks. In the past, right-wing extremists like Hitler and Mussolini were in the forefront of state control. But with the exception of Burma, today's totalitarians are primarily on the left. Certainly that's the case in the U.S.A. "Talking Points" is not ready to say the Obama administration wants to deprive us of rights; that wouldn't be fair. There is a movement under way in this country led by so-called progressives that would restrict individual liberty. These people want the government to run the economy, to tell you how much you can and can't have, to force you to buy things like health insurance, and to take away things they don't approve of, like guns.
O'REILLY: [Mark] LeVine, if you look at the letters, and I have one by Thomas Jefferson -- I personally own it, OK? -- that they wanted individual -- you didn't have to be in a militia, you could have been a farmer. They wanted individuals to have protections against tyranny, which is what Mr. McDonald wants.
LEVINE: Bill --
O'REILLY: But I don't want to debate history.
LEVINE: That's not what's in the text of the Constitution. I just wanted to be clear here.
O'REILLY: Yes, it is. It is. It is in the text --
LEVINE: I'm a strict constructionist. You're the judicial activist here.
O'REILLY: -- as the Supreme Court has ruled for 270 years.
LEVINE: No, no, no, no, sir. They ruled that last year. They ruled that last year.
O'REILLY: Not all -- no. There have been challenges --
LEVINE: For 200 years they ruled the other way.
O'REILLY: -- all throughout our history.
Recent circuit court cases have upheld "settled law" that the Second Amendment only applies to federal gov't
7th Circuit cites precedent dating to 1876 in stating "The Supreme Court has rebuffed requests to apply the second amendment to the states." The June 2, 2009, 7th Circuit per curiam opinion in NRA v. Chicago upheld a Chicago ban on some handguns, noting that the "Supreme Court has rebuffed requests to apply the second amendment to the states," citing several precedents dating back to 1876:
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 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 amendment 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.
2nd Circuit similarly found it "settled law" that "the Second Amendment applies only to limitations the federal government seeks to impose." In a January 28, 2009, per curiam opinion, the 2nd U.S. Circuit Court of Appeals found in Maloney v. Cuomo, "It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right," similarly citing 19th century precedent:
The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. The Supreme Court recently held that this confers an individual right on citizens to keep and bear arms. See District of Columbia v. Heller, 128 S. Ct. 2783, 2799 (2008). It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right. See, e.g., Presser v. Illinois, 116 U.S. 252, 265 (1886) (stating that the Second Amendment "is a limitation only upon the power of congress and the national government, and not upon that of the state"); Bach v. Pataki, 408 F.3d 75, 84, 86 (2d Cir. 2005) (holding "that the Second Amendment's 'right to keep and bear arms' imposes a limitation on only federal, not state, legislative efforts" and noting that this outcome was compelled by Presser), cert. denied, 546 U.S. 1174 (2006). Heller, a case involving a challenge to the District of Columbia's general prohibition on handguns, does not invalidate this longstanding principle. See Heller, 128 S. Ct. at 2813 n.23 (noting that the case did not present the question of whether the Second Amendment applies to the states).
Heller, which overturned a D.C. ban on handguns, "did not settle whether the [Second] Amendment" applies to states. The landmark 2008 Supreme Court case District of Columbia v. Heller overturned a Washington, D.C., ban on handguns. However, D.C. is a federal entity subject to federal law, and as Lyle Denniston noted on SCOTUSblog, in Heller, the Supreme Court "did not settle whether the [Second] Amendment operates against any level of government other than the federal government and a federal entity, the District of Columbia."
Conservative judges -- not just liberal "totalitarians" -- have upheld that Second Amendment only applies to federal gov't
Contrary to O'Reilly's suggestion that only "totalitarians ... primarily on the left" support the 7th Circuit's ruling in NRA v. Chicago, the ruling was joined by conservative Reagan appointees Chief Judge Frank H. Easterbrook and Judge Richard Posner.