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First reported 6/2/2009 4:08 p.m.

Oak Park officials are expressing qualified optimism in the wake of a federal appeals court ruling upholding the right of Oak Park and Chicago to enact restrictive firearm laws.

In a unanimous ruling penned by Chief Appeals Court Judge Frank Easterbrook, the U.S. Court of Appeals for the 7th Circuit in Chicago ruled last Wednesday that a U.S. Supreme Court ruling last year recognizing citizens’ rights to bear arms did not apply to individual states. He was joined in the opinion by Circuit Court judges Richard Posner and William Bauer. All three judges were appointed to the federal bench by Republican presidents.

“The Supreme Court has rebuffed requests to apply the second amendment to the states,” Easterbrook wrote in affirming the lower court ruling.

The court’s ruling came in response to a lawsuit filed by the National Rifle Association in 2007. A lower court had thrown out those challenges in 2008.

The NRA wasted no time in appealing, filing a brief with the Supreme Court seeking a writ of certiorari, which is a request that the higher court get the case record for review from the appeals court.

Richard Pearson, executive director of the Illinois State Rifle Association, announced last week that he wants to take the case all the way to the U.S. Supreme Court. “The Constitution applies to states and local municipalities,” Pearson said on WBEZ radio. “Just like free speech, search and seizure does. That’s what we’re looking for is to get incorporated. So that this law applies to everyone in the nation.”

Oak Park Village President David Pope flatly disagreed with Pearson’s contention, and said he believed the Supreme Court likely would as well. The Supreme Court, he noted, “has already said some firearm regulation is constitutional.”

“There’s another piece of this issue that hasn’t gotten as much coverage,” Pope said. “That is the importance of municipalities and states being able to establish reasonable rules of procedure based upon the particular needs and circumstances of those areas.”

Oak Park Village Manager Tom Barwin said he was “just very pleased with the opinion.”

“It appears to be supportive of local voters on this vital issue of public safety,” Barwin said, noting that the NRA had prevailed in a previous high-profile case in which a Washington, D.C., handgun ban was ruled unconstitutional.

Barwin noted that Washington, D.C., is under federal, not state jurisdiction. “We’re not a federal enclave; we’re a local municipality. This law was passed by a majority of voters in Oak Park.”

The decision is a vindication of the decision by the village board to stand firm in the face of the Washington decision and the Supreme Court ruling upholding second amendment rights.

Oak Park Police Chief Rick Tanksley, who has long argued that Oak Park faces circumstances not seen in rural areas, said “I think Oak Park is safer due to this decision.” Like Barwin, he expressed satisfaction that the village didn’t fold its hand after recent rulings appeared to side with the NRA.

“It’s a testament to Oak Park’s values and their willingness to fight for those values,” Tanksley said.

Pope said the village’s decision was eased a bit by two key factors. First, a number of lawyers contacted the village offering pro bono services, saving the village substantial legal fees. Then, when the City of Chicago announced last year that it would fight efforts to repeal its gun ban, Oak Park was effectively shielded from most of any potential plaintiff’s attorney’s fees, should the NRA prevail in their civil rights case.

Asked if the decision left the village in a strong position, Village Attorney Ray Heise, who wrote the village ordinance banning hand guns, said, “We should feel very good about this. The last two or three pages are golden,” Heise said, referring to the appellate court opinion.

The circuit court, Heise said, offered strong support for differences in federal and state laws, writing, “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.”

Heise also pointed to a paragraph in the appeals court ruling, noting, “In concluding their opinion, the judges held that the concept of federalism, of states’ rights, had a longer history than the constitution itself.”

“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,” Easterbrook wrote.

The doctrine of incorporation was crafted to preserve states’ rights under the constitution and to protect the right of the states to define the scope and content of civil liberties in disputes between a state and its citizens. Use of the doctrine has produced far-reaching reallocations of judicial power, slowly but steadily leading to much of the Bill of Rights being applied to states’ laws.

By the early 1960s, every clause in the Bill of Rights had been incorporated, except the 2nd, 3rd and 7th amendments and the grand jury indictment clause of the 5th Amendment. Heise said that even if the Supreme Court was to incorporate the 2ndamendment, the issue would go on.

“The game isn’t over,” Heise said, referring to a former Supreme Court justice. “Lewis Powell said that even with incorporation, the application of rules to state, local and federal governments can vary greatly.”

CONTACT: bdwyer@wjinc.com

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