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

[steve-b]

as far as we know, he wasn't even a militia member

He was under age 18, or over age 45? Or did he perhaps undergo an early experimental sex-change operation?

[steve-b]

Whatever he says means that the way it is? Golly gosh, I wonder if he'll say his weapon was a militia-type weapon? Gee, what do you think?

Let's try this again:

Presumably, the expert witnesses will have different takes on various points, in which case it falls to the court to decide who is more credible.

Admittedly, the repetition may not do you any good -- I don't think that Babelfish has a filter for converting from English to the language spoken on your home planet.

[robertpaulsen]

"I said it encompassed the "rights recognized in the BOR".

OK.

Article IV, Section 2 was written and ratified before the BOR was even added to the constitution. How could Article IV, Section 2 encompass the rights recognized in the BOR when the BOR didn't even exist?

[robertpaulsen]

"How can that be if privileges and immunities do not encompass rights?"

I said nothing about rights. I was talking about privileges and immunities. Did you miss that? Did you not understand that?

Article IV, Section 2 deals with privileges and immunities, not rights. I said when it comes to Article IV privileges and immunities, a state cannot treat a citizen of another state differently than their own.

[Ken H]

Article IV, Section 2 deals with privileges and immunities, not rights. I said when it comes to Article IV privileges and immunities, a state cannot treat a citizen of another state differently than their own.

So what was in the Constitution in 1787 to stop a state from denying fundamental rights to a citizen of another state, if not Article IV?

[ctdonath2]

The relevance is that we're here, now, today - not 70 years ago.
The relevance is that the usability of some things is not readily apparant at a given time - short barrels are nothing new and haven't been for 70 years, yet only recently was the "it's for criminals" mindset overcome and such items brought into common militia use.
The relevance is that you're stuck arguing standards from 60, 70, 150, 200 or more years ago, while the rest of us have moved into the 21st Century, and have the latest Parker verdict to support our RKBA.

[Dead Corpse]

It's more than just a verdict form some random panel of judges. For me, it was the logic and historical accuracy of the arguments used by the majority justices in the Parker decision. Their findings FINALLY line up with Founding Intent and the express language in the Constitution and supporting documents.

Rights are Rights. It's not a "Right" if you have to ask permission. Why this is so hard to understand for some folks can only be explained by ignorance, or arrogance. Either ignorance that you have such a Right, or the arrogance to tell another person that they have no Rights.

[El Gato]

I salute you for your persistence, but, really, in this case it's like trying to bail out the Pacific Ocean with a teaspoon

It wasn't Robert that I was educating, that would be a lost cause.

[Ken H]

How could Article IV, Section 2 encompass the rights recognized in the BOR when the BOR didn't even exist?

Because fundamental rights - many of which were recognized in the BOR - existed long before the BOR.

[robertpaulsen]

"So what was in the Constitution in 1787 to stop a state from denying fundamental rights to a citizen of another state, if not Article IV?"

By "denying fundamental rights" of course you mean, "denying the protection of fundamental rights". In 1787, there was nothing to stop a state from denying the protection of fundamental rights to their OWN citizens (much less citizens of another state) except the state constitution.

[robertpaulsen]

"Because fundamental rights - many of which were recognized in the BOR - existed long before the BOR."

Those are rights. Why in the world would you think Article IV, Section 2 -- which only mentions privileges and immunities of Citizens of the states -- would encompass ANY rights?

[Ken H]

In 1787, there was nothing to stop a state from denying the protection of fundamental rights to their OWN citizens (much less citizens of another state) except the state constitution.

If you exclude fundamental rights from "privileges and immunities", then what required states to protect the fundamental rights of citizens of other states that it recognized for its own citizens?

[Ken H]

Why in the world would you think Article IV, Section 2 -- which only mentions privileges and immunities of Citizens of the states -- would encompass ANY rights?

1. The 1825 Corfield decision for one:

"The inquiry is, what are the privileges and immunities of citizens in the several states?" We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign."

2. Douglass, 1821:

"...the words "privileges and immunities" comprehend all the rights, and all the methods of protecting those rights, which belong to a person in a state of civil society,"

[robertpaulsen]

"then what required states to protect the fundamental rights of citizens of other states that it recognized for its own citizens?"

In 1787, did the states protect the fundamental rights of citizens of other states that it recognized for its own citizens? If they did, I assume it was under their state constitution.

[robertpaulsen]

Corfield says nothing about rights.

Douglass said, "the words "privileges and immunities" comprehend all the rights ... which belong to a person in a state of civil society". (He didn't say, "the words "privileges and immunities" comprehend all the rights ... which belong to a Citizen of a state.) I listed a whole bunch of those belonging to a person in a state of civil society in an earlier post.

[Ken H]

In 1787, did the states protect the fundamental rights of citizens of other states that it recognized for its own citizens? If they did, I assume it was under their state constitution.

But in your view of privileges and immunities, they were not required to do so. Does it not seem absurd that the Constitution would require a state to entitle the citizens of other states to its privileges and immunities, but not its fundamental rights?

[tpaine]

The basic argument being made is that society can decide which rights will be protected --- If a majority of people decide that we should prohibit arms, then it can be done. -- In this bizarre 'constitutional' view, there is nothing to stop a majority from banning any thing or any act.

[robertpaulsen]

"Does it not seem absurd that the Constitution would require a state to entitle the citizens of other states to its privileges and immunities, but not its fundamental rights?"

Isn't that an application of federalism? Each state unique in the rights it protects and the laws it enforces?

Or does that make you uncomfortable?

Would you like just one set of rights and one set of rules for all 50 states? Hey, I've got an idea. Let's do that, then we'll have five justices interpret those rights for all of us, AND they'll also rule on the constitutionality of the laws that we all must obey!

And if we don't like it we can always move to another .... no, can't do that.

[Ken H]

Corfield says nothing about rights.

Bull. Justice Washington, Corfield:

Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety;

-snip-

These, and many others which might be mentioned, are, strictly speaking, privileges and immunities,"

Douglass said, "the words "privileges and immunities" comprehend all the rights ... which belong to a person in a state of civil society". (He didn't say, "the words "privileges and immunities" comprehend all the rights ... which belong to a Citizen of a state.)

So? He was defining P&I, not saying how they applied to Article IV or the States.

I listed a whole bunch of those belonging to a person in a state of civil society in an earlier post.

Like the right to travel, and the right to commerce. So you do agree that P&I does include at least some fundamental rights. What evidence do you have that the Founders thought the terms "privileges" and "immunities" did not comprehend fundamental rights?

[robertpaulsen]

"Bull. Justice Washington, Corfield:"

Are you playing games here? There was no mention of rights in your post #1213 -- that's the one you asked me to comment on.

Now you bring up something else. Screw you. I'm outta here. I'm tired of putting up with your bull$hit and your gotcha games.