Posted on 03/09/2007 8:10:02 AM PST by cryptical
Edited on 03/09/2007 10:38:14 AM PST by Admin Moderator. [history]
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
Do you believe the Second Amendment protects and individual right or a collective right?
Do you believe the Bill of Rights (the first 10 amendments) limits government power or grants people rights?
Thank you in advance for two yes or no answers.
If such laws go unchallenged, they remain in force. Given that the governments (federal and local in these two examples) had already acted, what was the downside in taking them to court?
Texas doesn't want NY's gun laws, and they shouldn't. But NY doesn't necessarily want Texas' gun laws either.
Are not the citizens of both states entitled to the same RKBA, in your understanding of the Constitution?
Miller?
The case that stands, on a procedural basis, for an individual right interpretation of the second amendment?
you'll go toe-to-toe to defend Miller?
Really?
If you don't agree that Miller demonstrates that the Second Amendment deals with an individual right then you are either an uneducated windbag, a shill or both.
And I'm betting you can't identify my argument within 60 seconds.
"A question that needs to be asked and answered is, by the terms of the Second Amendment an individual has the right to bear arms. Then why does a person need a conceal carry permit to be able to carry a weapon concealed?"
Exactly. We scored a win on the "keep" now what about the "bear"? This is the underlying reason why some gunnies refuse to get the permits and carry openly instead.
Your numbers game doesn't mean much. The Court will not base its decision primarily on that. Even if only two circuits have adopted the "individual right" view, the Court can still side with those two circuits. It has done so in the past on a variety of issues. Also, if you're going to play the circuit game, then historically the DC Circuit carries a lot of weight with the Supremes. The 9th Circuit, well... let's just say not so much.
Your picture is proof of one advantage Rudy has over Hillary.
He has nicer legs.
Alito is now on the US Supreme Court. The other judges aren't. Let's give it awhile and see where this DC reversal ends up.
Then we'll see who wins and who loses.
and the dissent in the 9th circuit's en banc review of Locklear was dead on point wrt the second amendment and the effect of ruling it a collective right on other cherished individual rights.
paulsen is a statist douchebag..don't bother.
watch how he tries to weasel out of my very pointed inquiries to him
he's out of his league in this discussion but just too inbred to realize it.
8:22:31
the clock is ticking...what is my argument?
Kelo is a good example - one state passed and acted upon a law, a homeowner challenged it - HE LOST. now with that precedent in place, states all over the country are doing the same thing Connecticut did. its happening all over the place now.
my point is - this decision looks good to everyone here, because the pro-2A side won. and clearly the bounds of this case justified this decision, I am all in favor of it.
but there are alot of twists and turns to the guns laws across all 50 states - carry laws, guns for felons, guns for people with orders of protection against them, some americans want to own automatic weapons, and on and on. do we let the federal judiciary decide all aspects of this? because once they do, everyone gets those laws, in every state.
Current Federal law prohibits the sale of newly manufactured fully automatic weapons, so now we have a limited and aging supply of NFA guns. This is clearly contrary to the "well-regulated" provision of the 2nd Amendment. It is impossible to characterize a militia which is incapable of carrying out its mission as "well-regulate." The Constitutionally defined missions of the militia according to Article 1 Section 8 are to a) enforce the laws of the US b) suppress rebellions and c) defend against foreign invasion. If the militia was going to actually defend against foreign invasion full auto weapons would be required, and are now, no where near as widely available as is realistically needed to perform the mission.
" because once they do, everyone gets those laws, in every state."
Not exactly. The states could still have stronger protections than the minimum that the Court reads into the 2A. State constitutions can (and often are) read by their state supreme courts to have more protection of rights than the federal Constitution.
Kelo was wrong because it essentially eliminated any REAL check on eminent domain by the federal courts (Despite what the Constitution says on the matter.) At this point, there is NO check by the SCOTUS in the area of the 2A, so any improvement in that direction would be a good thing. At this point, I don't think the Kelo fears are justified.
I agree with you there - that's where this is going to end up - it remains with the states, with a federal "don't cross this line" minimum protection in place.
how the SCOTUS crafts this, is going to be interesting. I wonder if anthony kennedy was a part of any decisions on 2A while he was on the circuit court.
It is possible that the good guys could lose at the SCOTUS. I think Alito, Roberts, Thomas and most likely Scalia are on board to at least some extent, but Kennedy has a very interesting idea of liberty. He's a cherry picker when it comes to constitutional rights. I wouldn't be at all surprised to see him side with the libs on this one. Despite how many Democrat(ic) Congressmen vote on the issue, I expect Souter, Stevens, Ginsburg, and Breyer to come out strongly against the 2A. Will Kennedy be able to stand up to the NYSLIMES, WPOST, etc? We shall see.
A big sign will be how he votes on the PBA case. Yes, they are different issues, but given the fact that he wrote a strong dissent last time, he should be ready to overrule Carhart. The key issue is how stable and sure of himself he is at this point in time. If he doesn't overrule Carhart, and either votes to strike down the PBA ban or writes some garbage that guts it in practice (if not in theory), then we're in trouble. We'll never get a strong "conservative" opinion out of him if he's not even willing to stick to his very strong views of seven years ago.
Using the same logic in the majority opinion, i.e., the right to bear arms existed prior to the Constitution, and realizing that the District of Columnbia was once part of Virginia and Maryland prior to being created, then the right to bear arms still belongs to the residents of D.C. despite the fact it is not a state. The minority idiot judge was grasping at straws with her opinion, IMO.
"Perhaps the Democrats would be wise to take the issue off the table politically by passing some sort of federal legislation guaranteeing American citizens the right to own guns."
It's not that far-fetched of a scenario. My (Democratic) party wants to win. Period. I think the leadership would be willing to toss the gungrabbers overboard if doing so was seen to be a key toward achieving that end. Especially if it were looking like the gungrabbers were about to lose in the courts anyway. Ultimately it boils down to what the gungrabbers are bringing to the political table. These days it's precious few votes.
There are several elected Democrats who are pro-gun. Two Virginia examples, Sen. Webb and former Gov. Warner come to mind. In Virginia, it's usually the Republicans in the State Senate who prevent forward movement on gun rights issues.
Did you know you have to go into rehab if you use the word faggot?
I don't agree. Everyone would then have the same protection against infringement from state and local governments. Depending on how narrow or broad the ruling, it might overturn many of those restrictive laws.
I did. That's when people started nitpicking.
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