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
Well, any part of the Bill of Rights that speaks of "Congress shall make no law" clearly is not referring to the States. After all, some States had various established religions in place for many years after 1789.
The "Congress" reference is easily explained by the framers not wanting to step on the grandfathered power that States had over their "established religions in place for many years after 1789."
The 1st goes on to enumerate speech, press, assembly, and petition as rights of the people.. -- Rights which neither Congress nor any other official, fed/state/local, could ignore as per the supremacy clause of Article VI.
Fortunately for this argument, the 2nd Amendment is not phrased that way.
More convincingly, the 10th Amendment would seem to make clear that regulating the ownership of arms, being protected by the 2nd Amendment, is therefore both (1) not a power delegated to the United States, and (2) is a power prohibited by the 2nd Amendment to the States.
Well put Andy. -- All of the BOR's outline powers prohibited to the states, thus reserved to the people.
How do you explain the fact that the BOR was not enforced on the states until the early 1900's?
'They' in that sentence was a reference to the courts and states that ignored Article VI for decades after the constitution was adopted. I did not mean the signatories to the constitution. I think the meaning of Article VI is crystal clear, but history shows that it was ignored.
Only gunngrabbers find it easy to believe such rationalizations. -- It was just an accepted fact, for over 150 years, [till 1933] that neither the state or feds had power to prohibit weapons.
-- Sure, some towns like NYC had local ordinances against concealed carry, -- but that type of law was only enforced against the 'criminal element', and ignored by most honest men.
Once the camels nose [NFA of '33'] was under the tent, -- both fed & state 'legislators' have never looked back. -- Much to th delight of some, even here on FR.
In Article I, Section 8, it says that the congress shall have the power,
"To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;"
and
"To establish Post Offices and Post Roads;"
Further along, it says,
"No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money;"
and then it says,
"No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State. . ."
I suppose that a state could create its own post office as long as it delivered the mail only within that state, or that a state could create its own post office in the event of an enemy invasion. And I suppose that several states could obtain permission from congress to enter into a compact to deliver mail among the states in the compact. It would be helpful if the legislators in those states were immune to criticism in the form of torchlight marches and hanging people in effigy. I'm surprised that New York hasn't tried it, the unions could add another 100,000 members to bloat themselves at the public trough.
"This Constitution, and the Laws of the United States . . .
shall be the supreme Law of the Land;
and the Judges in every State shall be bound thereby,
any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
How could this be more clear?
It's not showing yet - and I'm not the only one having expressed that opinion.
Being NFA doesn't completely eliminate ownership. I can go buy new DDs now, just have to file paperwork and pay $200.
I just bought a brand new, way-post-'84 NFA SBR. Hardly "strictly off limits". (Where'd you get the '84 date?)
The only thing "strictly off limits" is post-'86 machineguns. Anything else is legal with proper paperwork; if hard to get, either is a state restriction (all NFA banned in HI) or simply an inadequate market (I'd like to buy a new XM-177 howitzer, but don't see any sellers).
If true, the courts ignored it for 150 years. They're still ignoring it on some amendments, making it 220 years now.
Now, you can either believe there was some massive conspiracy by the courts spanning 150 years or you can admit that your assumption about the "clear" meaning of the Supremacy Clause was wrong.
How much longer, how many more posts, are you willing to make yourself look foolish? It's up to you.
I look a fool? You're the one who can't understand why the states can't print money. Your sophistry is annoying.
Obviously, since the first gun grabber decided to spit on the 2nd.
This argument was made by the majority on the DC Circuit; specifically to squash the specious argument that the 2nd Amendment only protects flintlocks. They point out that the weapons mentioned in the 2nd Militia Act were state of the art weapons, not antiques. They presumed that the intent of the Congress was to keep the militia armed with the most modern weapons the People could afford. Since members of that Congress also drafted the 2nd Amendment, it is logical to assume that they would want this technological development to continue under the protection of the 2nd Amendment. (And IIRC, the DC Circuit did speculate on how the Supreme Court might have ruled had Miller been represented.)
It isn't a debate when one side is intentionally dishonest, and is deliberately attempting to alter the meaning. "The right of the people" - not states, not militias - "to keep and bear arms" meaning, to retain possession of, and carry - "shall not be infringed" meaning, zero encroachments on the foregoing. Period.
The Framers even anticipated technological advancement, by spelling out the patent office.
There's not much distinction, as citizens have owned MOST of the weapons of war since the beginning. Armed ships were common, and that was what would be used when letters of Marque and Reprisal were issued by the Congress. Also, to this day, some folks own artillery (though the BATFags restrict it greatly) and beltfed weapons. Some collectors even own warplanes. Personally I want most of the above, including an LPH as a yacht. (an LPH is an amphibious assault ship, designed for carrying Marine infantry and helicopters.)
bump
Geezy weezy! It sure skyrocketed since Friday!
But yes, some DD's are off limits. Try and buy a frag grenade or HE rounds for a .50 BMG and see what I mean.
Some SBS (Short Barreled Shotguns) are DD's that you can put on a Form 4. Certain "street sweepers", or other short length shotguns, are NFA restricted and good luck getting the BATFE to sign off on your forms.
SBR's just need the right paperwork filled out, the right palms greased, and the receiver engraved.
For DD's and AOW's, it's pretty much up to the BATFE's arbitray BS whether or not they want to sign off on it.
Contrast this to my point that none of these arbitrary classifications should exist at all.
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