We now turn to Justice’s Second Amendment claim. The
district court found that the Town’s ordinance requiring
the registration of all firearms did not violate Justice’s
constitutional rights because the Second Amendment
does not regulate the activities of a state or its subdivisions,
relying on this court’s decision in Quilici v.
Village of Morton Grove, 695 F.2d 261, 269-71 (7th Cir. 1982).
It noted that the Illinois Constitution subjects the right
to bear arms to the police power, and that Illinois
permits municipalities to regulate the possession of
firearms to protect the public health, safety, and welfare.
See Sklar v. Byrne, 727 F.2d 633, 637 (7th Cir. 1984).
Since the date of the district court’s opinion (October 10,
2007), there has been some water under the Second
Amendment bridge. First, the Supreme Court decided
District of Columbia v. Heller, 128 S. Ct. 2783 (2008), which
struck down an ordinance of the District of Columbia
that flatly prohibited the possession of handguns.
Second, this court decided National Rifle Ass’n of America
v. City of Chicago, 567 F.3d 856 (7th Cir. 2009), in which
we concluded that the Second Amendment (under
current Supreme Court law) is not one of the parts of
the Bill of Rights that has been incorporated by the Fourteenth
Amendment and thereby made applicable to the
states. In NRA, we aligned ourselves with the Second
Circuit’s decision in Maloney v. Cuomo, 554 F.3d 56 (2d
Cir. 2009), and expressed disagreement with the Ninth
Circuit’s reasoning in Nordyke v. King, 563 F.3d 439 (9th
Cir. 2009).
If, as we have held, the Second Amendment does not
apply to the states and their subdivisions, then Justice
has no case. Even if we are wrong and the Ninth Circuit
has proven to be the better predictor of the Supreme
Court’s rulings, there is a critical distinction between
the D.C. ordinance struck down in Heller and the Cicero
ordinance. Cicero has not prohibited gun possession
in the town. Instead, it has merely regulated gun possession
under § 62-260 of its ordinance. The Town does
prohibit the registration of some weapons, but there is
no suggestion in the Complaint or the record that
Justice’s guns fall within the group that may not be registered.
See § 62-261. Nor does Heller purport to invalidate
any and every regulation on gun use; to the contrary,
the Court in Heller disclaims any such intent:
Like most rights, the right secured by the Second
Amendment is not unlimited. From Blackstone
through the 19th-century cases, commentators and
courts routinely explained that the right was not a
right to keep and carry any weapon whatsoever in
any manner whatsoever and for whatever purpose. . . .
For example, the majority of the 19th-century courts
to consider the question held that prohibitions on
carrying concealed weapons were lawful under the
Second Amendment or state analogues. . . . Although
we do not undertake an exhaustive historical
analysis today of the full scope of the Second Amendment,
nothing in our opinion should be taken to
cast doubt on longstanding prohibitions on the possession
of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive
places such as schools and government buildings, or
laws imposing conditions and qualifications on the
commercial sale of arms. [FN26: We identify these
presumptively lawful regulatory measures only as
examples; our list does not purport to be exhaustive.]
128 S. Ct. at 2816-17 (citations omitted). Thus, even if we
are wrong about incorporation, the Cicero ordinance,
which leaves law-abiding citizens free to possess guns,
appears to be consistent with the ruling in Heller.
