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

[zeugma]

Well, there you have it; -- imho, Justice Thomas will go down in history as one of the finest; -- and Bork will go down as one of the biggest jokes.

I've got to agree with you. From reading Bork's writings, it turns out that he's a big-time statist.

I've really enjoyed Thomas' opinions and dissents over the years. 

[tpaine]

Reviving the Privileges or Immunities Clause to
Redress the Balance Among States, Individuals, and the
Federal Government

by Kimberly C. Shankman and Roger Pilon

Kimberly C. Shankman is associate professor of politics and government at Ripon College, Ripon, Wisconsin. Roger Pilon holds the B. Kenneth Simon Chair in Constitutional Studies at the Cato Institute and is the director of Cato's Center for Constitutional Studies.

Executive Summary

Shortly after the Civil War, the American people amended the Constitution in an effort to better protect individuals against state violations of their rights. Under the Privileges or Immunities Clause of the new Fourteenth Amendment, constitutional guarantees against the federal government could be raised for the first time against state governments as well.
Although targeted initially against the "black codes" that were emerging in the postwar South, the amendment was written broadly to protect all Americans.

But 125 years ago, in 1873, in the infamous Slaughterhouse Cases, a deeply divided Supreme Court effectively eviscerated the Privileges or Immunities Clause. Since then courts have tried to do under the Due Process and Equal Protection Clauses of the amendment what should have been done under the more substantive Privileges or Immunities Clause.
The result has been an erratic and often groundless Fourteenth Amendment jurisprudence that has pleased neither liberals nor conservatives, yet both oppose reviving the clause.
Liberals tend to favor the latitude judges now have. Conservatives fear revival will lead to still more "judicial activism."

Both sides are wrong. Conservative "originalists" cannot ignore the plain language and history of the Privileges or Immunities Clause. Liberals need to appreciate that a properly read and applied clause will better protect individual rights.
In the current federalism debate, both sides should understand that power will be devolved to the states and the people in a principled way only if the principles inherent in the Privileges or Immunities Clause are revived--along with the clause itself.

[steve-b]

Justice Thomas will go down in history as one of the finest; -- and Bork will go down as one of the biggest jokes.

Indeed. Bork was literally saying "that part [interpreting the P&I clause] of the job I had as a federal judge and the job I applied for as a Supreme Court Justice is too hard, so I just blew it off."

[steve-b]

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.

Judicial-activist legislation from the bench is not a new phenomenon.

[anymouse]

Does that mean that we can now get on with implementing the original intent of the 2nd amendment? ;)

[tpaine]

"-- Judicial-activist legislation from the bench is not a new phenomenon. --"


And as we see, lackey's that approve of judicial-activism from the bench are not a new phenomenon.

[robertpaulsen]

"Judicial-activist legislation"

They struck down the law as unconstitutional. Where was the activism? Where was the judicial legislation?

Or do you just throw out buzzwords so posters think you know what you're talking about?

[steve-b]

do you just throw out buzzwords so posters think you know what you're talking about?

projection (pr& JEK sh&n): the tendency to ascribe to another person feelings, thoughts, or attitudes present in oneself,

[archy]

If the U.S. Army thought there was merit to a 17" shotgun they would have told Colt to build one. They didn't.

From U.S. Navy Solicitation Number N0016404R4835, for 12 Gauge Shotgun Model 500A1 (P/N 50470)Type II Class I (maximum contract quantity) - 7,500 each:

This synopsis is being posted to both the Federal Business Opportunities(FBO) page located at http://www.eps.gov and the Navy Electronic Commerce on Line(NECO) site located at http://www.neco.navy.mil. While it is understood that FBO is the single point of entry for posting of synopsis and solicitations to the internet, NECO is the alternative in case FBO is unavailable. Please feel free to use either site to access information posted by the NSWC Division Crane. This is a combined synopsis/solicitation for commercial items prepared in accordance with the format in FAR 12.6, as supplemented with additional information included in this notice. This announcement constitutes the only solicitation; proposals are being requested and a written solicitation will not be issued. Solicitation Number N00164-04-R-4835 is hereby issued as a Request for Proposal (RFP). Incorporated provisions and clauses are those in effect through Federal Acquisition Circular 2001-23 as well as DCN 20040608. The North American Industry Classification System (NAICS) Code for this procurement is 332995 and the size standard is 500 employees. This procurement will be conducted on a sole source basis in accordance with the statutory authority 10 U.S.C. 2304(C)(1) as implemented by FAR 6.302-1. Naval Surface Warfare Center, Crane Division intends to enter into a Firm-Fixed-Price, supply type, Indefinite Delivery/Indefinite Quantity (IDIQ) contract with an ordering p! eriod of five (5) years after award, for the following items manufactured by O.F. Mossberg, Inc. This requirement is for the following: CLIN 0001 ? 12 Gauge Shotgun Model 500A1 (P/N 50470)Type II Class I (minimum contract quantity-to be purchased at time of contract award) 2,200 each CLIN 0002 ?12 Gauge Shotgun Model 500A1 (P/N 50470)Type II Class I (maximum contract quantity) - 7,500 each. Inspection and acceptance will be performed at destination. Offerors shall provide pricing on the attached pricing matrix. Delivery is required F.O.B Destination NSWC Crane 47522 within 60 days after order(s). NOTE: Accelerated delivery of any or all units is acceptable and desirable to the Government. Government Specification: Description of the shotgun: The shotgun will be supplied with a 17-inch barrel (heavy wall) with black-chromed bead sight, and a clean-out magazine tube system with end cap. The shotguns will be equipped with a full synthetic stock and fore grip. The aluminum receiver will be anodized in accordance with Mil-A- 8625 and the metallic components will be phosphate coated in accordance with Mil-P-16232. The trigger housing and the safety button will be aluminum. Attached to the buttstock and magazine cap will be sling swivel systems. A sling will be provided. The shotgun will be compliant with the performance requirements of Mil-S-3443G including endurance and interchange testing.

[archy]

I'd like to buy a new XM-177 howitzer, but don't see any sellers)

You mean the M777 towed/airlift gun that the Marines have been playing with? Neat, and under evaluation by Finland, among others, but I think the Finns are really hoping for a chance at some Swedish Archer 155 wheeled SP guns. I know a fella after one of the German 150mm guns used in the Band of Brothers TV series. I'm not sure how demilled it is, but it'd sure look neat being towed by his BTR-70....

[archy]

Now, the U.S. Marshalls Service is part of the Executive Branch of the federal gov't, and the Legislature is part of the Legislative Branch.

This means that these jokers are members of two branches of the federal government at the same time.

And that, I belive, is illegal.

There's a neat little remedy for that problem under the Indiana state constitution: the acceptance of a second governmental office automatically vacates the first.

I had the entertaining project of applying it to a county Civil Defense Director who was also the chair of the local school board, and had voted to give his third [non-governmental] employer a three-and-a-half-million-dollar school repair contract. Following the report in our paper and an investigation by the state's Attorney General, he didn't even have to resign his school board job, as he'd already done so, de jure.

My next surprise for him: an open door act records request to the board as to how much he'd been paid in the three and a half years he'd illegally held both positions, and was thereby required to pay back by the State Board of Accounts. He passed away sometime thereafter, following a short bout with cancer, in 2004.

[robertpaulsen]

We were discussing US v Miller. That weapon was not available back then, so how could Mr. Miller have used it in his arguments?

[ctdonath2]

Hmmm...

+

=

Yeah, now that's what I'm talkin' 'bout!

[ctdonath2]

Shotguns are not a novel concept, and haven't been for hundreds of years. A few inches size difference, and even the change in loading mechanism, do not appreciably detract from the core function which remains pretty much the same. To attempt to draw a line between the two re:RKBA is to expose a bias that will not be satisfied by any examples or words, instead passionately seeking out any variance upon which to hang the "because of X, you can't exercise that right" argument.

[El Gato]

Any bets on what the Supremes will do?

Either Deny cert, (refuse to hear the case) or do like the 5th circuit did in Emerson, and uphold the "individual right" reading, but rule the laws in question, or some of them at least, do not infringe upon that right. The latter would be a stretch, but I won't be too surprised if that's what they do.

[El Gato]

But I'd say a sawed-off shotgun would qualify -- it's not a militia-type weapon.

Wrong!

Short barreled shotguns, often double barreled ones, were common among horse calvary units, and would be suitable for today's mounted troops as well, in some situations. Just because the US Army has decided to go with short barreled M-4 Carbine versions of the M-16 rifle, doesn't mean other weapons would not be suitable as well. The P-90, either select fire or semi-auto versions, to name just one example.

Remember that the Supreme Court never ruled that a short barreled shotgun was not suitable for militia purposes, but rather that the lower court should not have ruled that is was, without taking some evidence to that effect. IOW, they should not have taken "judicial notice" of the fact that it was, or was not, "Part of the ordinary military equipment"

Of course if Miller had been armed with a BAR or Thompson, things might have been different. Even the Supreme Court would likely have decided that those were well enough known as military weapons to allow "judicial notice" to be taken.

[El Gato]

It would mean they've been perpetuating one of the largest, most self destructive scams on the American people since the inception of Social Security.

Actually longer. Social Security was signed into law August 14, 1935 by FDR. The National Firearms Act was signed in June of 1934, also by FDR.

[El Gato]

In order to determine suitability, you're saying the lower court should ask .... Miller himself?

Would have been sort of hard, the buggar was dead by then.

[robertpaulsen]

"A few inches size difference, and even the change in loading mechanism, do not appreciably detract from the core function which remains pretty much the same."

Baloney. Take four inches off the barrel and you'll see a wider spread and a lower velocity.

"To attempt to draw a line between the two re:RKBA is to expose a bias"

Baloney. The shotgun in use at the time was 20". The law set 18" as the minimum, not because of any bias but because scumbags like Mr. Miller were concealing them and using them in criminal acts. A reasonable restriction that you don't happen to care for.

You come along and start making this 4th grade argument about "if 18" why not 17?" Fine. Make it. But not with me.