DC Circuit strikes down DC gun law

How Appealing Blog ^ | 03/08/2007 | Howard Bashman

[cryptical]

BREAKING NEWS -- Divided three-judge D.C. Circuit panel holds that the District of Columbia's gun control laws violate individuals' Second Amendment rights: You can access today's lengthy D.C. Circuit ruling at this link.

According to the majority opinion, "[T]he phrase 'the right of the people,' when read intratextually and in light of Supreme Court precedent, leads us to conclude that the right in question is individual." The majority opinion sums up its holding on this point as follows:

To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment's civic purpose, however, the activities it protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.

The majority opinion also rejects the argument that the Second Amendment does not apply to the District of Columbia because it is not a State. And the majority opinion concludes, "Section 7-2507.02, like the bar on carrying a pistol within the home, amounts to a complete prohibition on the lawful use of handguns for self-defense. As such, we hold it unconstitutional."

Senior Circuit Judge Laurence H. Silberman wrote the majority opinion, in which Circuit Judge Thomas B. Griffith joined. Circuit Judge Karen LeCraft Henderson dissented.

Judge Henderson's dissenting opinion makes clear that she would conclude that the Second Amendment does not bestow an individual right based on what she considers to be binding U.S. Supreme Court precedent requiring that result. But her other main point is that the majority's assertion to the contrary constitutes nothing more than dicta because the Second Amendment's protections, whatever they entail, do not extend to the District of Columbia, because it is not a State.

This is a fascinating and groundbreaking ruling that would appear to be a likely candidate for U.S. Supreme Court review if not overturned first by the en banc D.C. Circuit.

Update: "InstaPundit" notes the ruling in this post linking to additional background on the Second Amendment. And at "The Volokh Conspiracy," Eugene Volokh has posts titled "Timetable on Supreme Court Review of the Second Amendment Case, and the Presidential Election" and "D.C. Circuit Accepts Individual Rights View of the Second Amendment," while Orin Kerr has a post titled "DC Circuit Strikes Down DC Gun Law Under the 2nd Amendment."

My coverage of the D.C. Circuit's oral argument appeared here on the afternoon of December 7, 2006. Posted at 10:08 AM by Howard Bashman

[Ken H]

I've cited evidence that "privileges and immunities" was understood by the Founders to encompass the rights recognized in the BOR. What evidence do you have that says otherwise?

[tpaine]

Gotta love FR's masochists though.

[smoketree]

Yeah. Doesn't look too good for the future of man does it.

[smoketree]

Seems paulsen is the product of public schools.

[El Gato]

The lower court never ruled that Miller's weapon was or was not suitable for militia use. They said the NFA violated the second amendment. They were no more specific than that.

I know, but the Supreme Court opinion indicated that they implicitly did, when their opinion stated:

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

...

We are unable to accept the conclusion of the court below and the challenged judgment must be reversed. The cause will be remanded for further proceedings.

Since there were no "further proceedings" we can never know what might have occurred at them. But surely Miller's lawyer, had Miller still been among the living, would have brought in evidence that short barreled shotguns, even if not the exact type used by Miller, had indeed been at one time "part of the ordinary military", and not so long before then either.

In the civil war, and Indian wars after and before, the shotgun, usually a double barrel, was a common weapon of calvary troops.

BTW, the Winchester model 97 had an 18" barrel not a 20". (see also this article from Global Security But the reason it was that long was to give it a respectable magazine capacity, since their would be no point the barrel being shorter than the magazine tube. (Some barrel length went to the bayonet attachment as well, since the base of the bayonet fits up against the end of the magazine.

[El Gato]

Who should the lower court have asked to testify on the suitability of the weapon for a state militia?

Possibly several different folks, maybe some for each side. A military historian and/or officer (who could easily be the same person) would be a good choice. The testimony would be to answer the question "had such a weapon been used in militia/military service or could it be" The question to "has it" is clearly yes, the answer to "could it" might depend on the person. If the officer was from the calvary, still using horses in 1939, and even later in some cases, including the US Army after WW-II in patrolling the inter-german and other borders in Europe, the answer quite likely would be yes. Of course the real answer was to come in just a few years, as related by the US first circuit court in Cases

the rule of the Miller case, if intended to be comprehensive and complete would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well known fact that in the so called "Commando Units" some sort of military use seems to have been found for almost any modern lethal weapon. In view of this, if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus. But to hold that the Second Amendment limits the federal government to regulations concerning only weapons which can be classed as antiques or curiosities, -almost any other might bear some reasonable relationship to the preservation or efficiency of a well regulated militia unit of the present day,-is in effect to hold that the limitation of the Second Amendment is absolute. Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon. It seems to us unlikely that the framers of the Amendment intended any such result.

But of course, that is exactly the result intended by the Framers of the Second Amendment. But the first Circut substituted its policy preferences in place of the judgement of the Supreme Court and the written words in the Constitution itself, not to mention the other writings of the Founding Fathers.

[El Gato]

You keep mentioning "the state militia". Where are these state militia's. I have never heard of one.

They still exist. The national guard, *when not called into federal service" is *part* of the state militia. Many states have other organized units, often called the "State Guard". Texas has both Army and Air State Guard units, as well as a Medical Reserve Corps and a Maritime/Naval Regiment. Their uniforms are those of the respective service, but unlike the National Guard, they say "Texas State Guard" rather than "US Army". (The Army provides the uniforms and equipment for the national guard, but not the state guard). Furthermore most states have a "reserve militia" or "unorganized militia" provision in state law. In Texas everyone, save a few public officials (and the illegals!), from 18 to 60, male and female, is a member of the "reserve militia" and is subject to call up by the Governor. That's in contrast to the federal militia which is all males 17-45 and female members of the National Guard. The federal unorganized militia, which of the members of the militia who are not members of the National Guard or the Naval Militia.

The mission of the state guard is pretty much the same as the state mission of the national guard. They also are tasked to guard and maintain the NG armories when the NG is called in to federal service.

[steve-b]

Since this decision affects a state Militia, shouldn't each individual state be the one to decide which weapons their Militia will use? Shouldn't the state be testifying?

The state had no standing in this case, since the state was not being sued or prosecuted.

Mr. Miller had standing to present evidence that his shotgun was a militia-type weapon, and was therefore one of the "arms" the individual ownership of which is protected by the Second Amendment, but he didn't show up.

[steve-b]

While the 2nd Amendment does not define or limit arms

Actually, Miller concluded (correctly) that the militia clause provides guidance as to what sort of weapons constitute "arms". (The Supreme Court went astray in its specific finding of fact because the defendant failed to present the evidence that would have supported the conclusion that a sawed-off shotgun is indeed an "arm" of militia utility.)

Note that this neatly disposes of the "argument" that the militia clause must mean what the gun-grabbers want it to mean because, darnit, it has to mean something or it wouldn't be there.

[steve-b]

I'm not equivocating, I'm educating.

I salute you for your persistence, but, really, in this case it's like trying to bail out the Pacific Ocean with a teaspoon.

[ctdonath2]

Mine are 20" and 14". While there is a change in pattern size & velocity, it is not so dramatic as to warrant drawing a bright legal line between them. Mossberg sells a lot of the 14" ones to police & military.

were concealing them and using them in criminal acts

Then ban the concealment and use in criminal acts - just as the Parker verdict observed. Prohibition of mere ownership is not warranted ... especially when modern militaries have discovered that sub-18" barrels ARE particularly useful.

[steve-b]

Who should the lower court have asked to testify on the suitability of the weapon for a state militia?

The same people they ask about any other questions of fact that affect a case before them -- the expert witnesses supplied by the parties to the case. Presumably, the expert witnesses will have different takes on various points, in which case it falls to the court to decide who is more credible.

[ctdonath2]

They said the NFA violated the second amendment.

Did Miller actually reverse that? or did they merely remand the case for more evidence?

[ctdonath2]

Who should the lower court have asked to testify on the suitability

Your difficulty in answering that question belies the misguidedness thereof. The more people of your persuasion try to draw a line, the harder they find doing so.

Maybe there really isn't a line.

The Liberator pistol is, by your published reasoning, about as "unsuitable" as possible (very short smooth barrel, modest caliber, single shot, crummy quality, highly concealable, slow complicated reload, etc.) - yet a million were made in WWII precisely for "militia" (i.e.: anybody able & willing to fight in a declared war) purposes. Even a musket or sub-18" shotgun would be far preferable. Think about that: our government ordered production of a million of them specifically for our military allies.

[ctdonath2]

state militias

The 2nd doesn't say "state militias". It says "militia", and that from a federal perspective, including the President's ability to "call out" and Congress' ability to "train and equip" it.

[ctdonath2]

The 2nd doesn't say anything about "useful to" or "reasonable relationship to". It just says "arms" and "shall not be infringed". Congress is therein forbidden from limiting terms.

[ctdonath2]

Looking at the number of posts you've made on this thread, you have time.

[smoketree]

According to paulsen if the words state and militia are in the same paragraph and he needs them for his position then they are together.
There is simply no way to argue with someone like that.

[tpaine]

Another great common sense decision about bearing arms:

Restrictions cannot contravene the Constitution
Address:http://www.freerepublic.com/focus/f-news/1800547/posts