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
Going along with this idea, "well-regulated" not meaning "ruled" as liberals want to see it, but "equipped/armed".
Yep. On web forums, that's called "trolling". Which is about all there is to Bobby...
Nope, it's still all available ('cept post-'86 MGs). You can get the go-boom stuff, it's just that you have to pay the $200 tax on each round. Ok, so that turns in to a practical ban...which was the point of NFA in the first place (ex.: $200 tax on a $5 MG in 1935). Only reason we tolerate NFA now is that inflation over 70+ years has brought the value of $200 down to a tolerable tax on good quality stuff (and comparably, the taxed stuff has risen in quality to warrant such prices - suppressors shouldn't be $1000, but if you're going to pay $200 tax on one you might as well get something really quiet and indestructable). If the tax had been indexed to inflation, we'd have gotten a case to SCOTUS overturning NFA already.
Also, I need to make a correction to part of my earlier statement. Taking a look around, it turns out the Remington 870MKS is considered an AOW (All Other Weapons) and only requires a Form 4 and a $5 tax. However, it's expensive and Knights Armament won't sell 'em to just anyone. I've only found one person for far that says they were able to purchase one.
The debate has been going on so long as some insist on redefining plain terms, in an attempt to make the sentence say something other than what it plainly says.
You're blurring subcategories and laws.
AOWs require a $5 tax. New ones may be made.
Non-AOW, non-MG items require a $200 tax. New ones may be made.
MGs require a $200 tax. New ones may NOT be made for civvies.
NFA per se is decreasingly onerous. The tax, $5 or $200, is by inflation falling from practically prohibitive to merely obnoxious.
922(o) - often confused with NFA - bans post-'86 MGs altogether. It is ONLY full-auto things that have the limited supply, and thus are costly per high demand.
(FWIW: I have 3 NFA items.)
True.
We have a surplus of nanny/police state supporters on this site as well.
The text of 14A most certainly does not "incorporate" the BOR as applying against the states. Any such incorporation ("selective incorporation") was achieved via judicial activism and findings of "substantive due process" - yet another fiction.
My understanding of the original intent of 14A was to force states to treat citizens equally (blacks and whites for example) - even in a state's appication and enforcement of seemingly unfair state law (no person shall hold office unless he believes in God for example).
I wouldn't worry about that. Plenty of the peeps on the street are already pack'n.
Help me here...
I understand the BOR to be a limitation on federal government.
How would natural rights, enumerated in the constitution, be subject to violation by other government entities?
Wouldn't the "privileges or immunities" clause explicitly extend the protection of the constitution?
That was the thinking at the time -- the "privileges or immunities" clause would encompass the rights of the people and the states would then be obligated to protect those rights under the 14th.
That was shot down by the U.S. Supreme Court the very first time it was tried in the Slaughterhouse Cases of 1873.
"How would natural rights, enumerated in the constitution, be subject to violation by other government entities?"
As you said, the BOR only applied to the federal government. The feds couldn't prohibit free speech, for example, but states could (if it wasn't protected by the state constitution).
This is called federalism. Or, I should say, it was called federalism.
rp: That was the thinking at the time -- the "privileges or immunities" clause would encompass the rights of the people and the states would then be obligated to protect those rights under the 14th.
Agreed. That was what the 14th was understood to mean at the time it was promulgated.
That was shot down by the U.S. Supreme Court the very first time it was tried in the Slaughterhouse Cases of 1873.
IOW, the Court ruled against the original understanding.
Understood by who? That wasn't the understanding of the majority of those who voted for it.
"IOW, the Court ruled against the original understanding."
Turns out they didn't.
The ones who were doing that "thinking at the time".
[Justice Washington in Corfield, 1825] endorsed the colonial-era conception of the terms "privileges" and "immunities," concluding that Article IV encompassed only fundamental rights that belong to all citizens of the United States.4 Id., at 552.
Justice Washington's opinion in Corfield indisputably influenced the Members of Congress who enacted the Fourteenth Amendment. When Congress gathered to debate the Fourteenth Amendment, members frequently, if not as a matter of course, appealed to Corfield, arguing that the Amendment was necessary to guarantee the fundamental rights that Justice Washington identified in his opinion.
See Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L. J. 1385, 1418 (1992) (referring to a Member's "obligatory quotation from Corfield"). For just one example, in a speech introducing the Amendment to the Senate, Senator Howard explained the Privileges or Immunities Clause by quoting at length from Corfield.5 Cong. Globe, 39th Cong., 1st Sess., 2765 (1866).
Furthermore, it appears that no Member of Congress refuted the notion that Washington's analysis in Corfield undergirded the meaning of the Privileges or Immunities Clause.
J. Thomas, Saenz v Roe, dissenting.
_______________________________
Robert Bork: [The P&I] Clause is inscrutable and should be treated as if it had been obliterated by an ink blot. --The Tempting of America 166
Both of them?
I'm saying that those who thought the 14th applied the BOR to the states thought the P&I Clause would be the vehicle for doing so. Those who thought that way were a) in the distinct minority (a handful) and b) wrong.
The overwhelming majority of those who passed the 14th did not think it applied the BOR to the states in any way, shape, manner, or form. This was confirmed by legislation they attempted to pass subsequent to the 14th (legislation that would have been unnecessary if the BOR applied to the states), the U.S. Supreme Court ruling in the Slaughterhouse Cases a mere five years after ratification (which the Congress then did nothing about), and subsequent court rulings for the next 60 years.
It was only then that activist courts starting using the Due Process Clause of the 14th (NOT the P&I Clause) to selectively incorporate the BOR. Parts of the BOR are STILL not incorporated.
Why would he conclude that? Article IV says very clearly, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."
It essentially says that a state cannot treat a citizen of another state differently than their own. Guess what? The slaves were not citizens of any state. They had no privileges and immunities. And after they were freed, the states treated them exactly that way.
The 14th was passed (as part of a trilogy of amendments) to give the slaves some basic privileges and immunities -- they were declared "citizens of the United States" and were entitled to those privileges and immunities that were part of the national government.
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