D.C. Circuit panel holds that the District of Columbia's gun control laws violate Second Amendment

How Appealing ^ | 9 March 2007 | Howard Bashman

[RKV]

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. At "The Volokh Conspiracy," Eugene Volokh has posts titled "Timetable on Supreme Court Review of the Second Amendment Case, and the Presidential Election"; "D.C. Circuit Accepts Individual Rights View of the Second Amendment"; and "Dictum," while Orin Kerr has a post titled "DC Circuit Strikes Down DC Gun Law Under the 2nd Amendment." And at "The BLT: The Blog of Legal Times," Tony Mauro has a post titled "D.C. Circuit Strikes Down D.C. Gun Control Laws."

[Jedi Master Pikachu]

Appreciated.

[the OlLine Rebel]

Already posted earlier and at 200+ replies:

http://www.freerepublic.com/focus/f-news/1798063/posts

[GrandEagle]

Doesn't the Bill of Rights extend to all Americans, whether or not they reside in a state? Should people in Washington D.C. not have the freedom of speech? (rhetorical). The bill of rights applies to those not residing in one of the States that are party to the agreement only to the point that they are called out. For example, the 13th amendment specifically states that slavery will not exist in any of the United States OR in any place subject to their jurisdiction.

The Constitution doesn't GRANT the citizens of our nation any rights (such as freedom of speech), it simply calls out a few rights that we already have to be off limits to any governmental interference.
The Constitution is the document that lists the rights that "We the People" grant to the federal government.
It also lists a few that "we" agree that the States give up - such as keeping warships.

[hophead]

" D.C. is not a State - it is a territory that the US legislature has exclusive legislative jurisdiction over"

So, we can confer the protections of the US Constitution on illegal aliens and terrorists who are being held in Gitmo, but not on legal residents for the SOLE reason that they live in DC? Sounds absurd to me. Are the OTHER articles of the Bill of Rights in the Constitution not guaranteed to DC residents? I cannot recall any other "rights" not conferred to those residents of DC.

[hophead]

Exactly. See post 17.

[hophead]

OOPS. I mean post 15. We are not granted these rights. They are an endowment from our Creator.

[dangerdoc]

DC residents whine all the time about their right to be represented.

[RKV]

Good, let's have 200 more posts here too.

[Spirochete]

Doesn't the Bill of Rights extend to all Americans, whether or not they reside in a state? Should people in Washington D.C. not have the freedom of speech? (rhetorical).

Well, since constitutional rights extend to illegal aliens, one could argue that they cover DC residents as well.

[GrandEagle]

So, we can confer the protections of the US Constitution on illegal aliens and terrorists who are being held in Gitmo
Depends... If arrested inside one of the 50 States, the Constitution is clear. Also, depending what "status" you want to consider these folks (illegal combatants, POW's, etc. - a different discussion) duly ratified treaties apply because the Constitution says so.

Many "rights" are conferred to D.C., along with Guam, Puerto Rico, and other possessions of the U.S. just because it is right. They are not a party to the Constitution but they do reap the benefits of being a possession of a country who wants to treat them right.

[GrandEagle]

One could very well make that argument - however, it still doesn't change the FACT that the Constitution is an agreement between the States as to what authority the Federal government has.
It no more applies to non state residence than a loan agreement you sign applies to me.
There are a few things that make D.C. a bit different that the rest of our possessions though. It was ceded from other States to become the seat of Government. It SPECIFICALLY was not to become a State so that the FEDERAL government would not be able to favor that State.

[AFPhys]

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.

What an awesome paragraph!

This really sums up the context and the historical argument I've always maintained to be important when I've argued about gun ownership.

[MamaB]

It was 79 to 21 just now.

[RKV]

Awesome is right. "ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty" When do I get my HK MP5SD? Yeah, I know, not yet. But I can hope someday, eh? Espcially considering that the Constitutionally defined missions of the militia are "[1]execute the Laws of the Union, [2]suppress Insurrections and [3]repel Invasions[!!]" Kind of hard to do those jobs without full auto firepower.

[sergeantdave]

The Nancy-boys at the New York Times will have a hissy-fit and probably throw their purses at the cafeteria cook.

[El Gato]

Though that brings up a question (yet another one): are the rights in the Constitution which don't specifically refer to people in the states applicable to territorial born Americans in the American territories/commonwealths?

They have all the rights guaranteed by the Constitution. Voting is not a right, at least not a universal one, it can be denied for a variety of reasons, although later amendments have restricted what those reasons may be. (may not be denied on account of race, color or previous condition of servitude (15th amendment), sex (19th amendment) or failure to pay a poll tax (in a federal election, 24th amendment), or age (if 18 or older, 26th amendment). Neither is representation in Congress, or voting for Presidential electors. (Except in DC for electors, amendment 23)

All of the rights protected by the first 9 amendments are individual ones, nothing to do with the states. The 10th amendment protects powers of the states, and/or the people, from federal usurpation.

[Old Dirty Bastiat]

"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."

Is this the first time a federal court has struck down a gun control law as unconstitutional under the second amendment?!

HISTORIC!!!!

[El Gato]

The Constitution is an agreement between the States.

Not entirely. The Preamble reads:

We The People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The Constitution is a delegation of power to the national government, by the people. It's also a limitation on that power, and in some cases on the powers of the states as well. (States can't print money, or levy export taxes for example).

The states role lay in ratification. They didn't write it, but are a party to it because of ratifying it. Since they didn't make the agreement in the first place, they can hardly have made it between them.

[El Gato]

The Constitution is the document that lists the rights that "We the People" grant to the federal government

No it grants powers. Governments don't have rights, only powers. Compare and contrast Amendments 1-9 with amendment 10.

It also lists a few that "we" agree that the States give up - such as keeping warships.

Again, the states are denied powers, they have no rights. States Rights is a misnomer.

[2111USMC]

84% "YES" 16% "No"