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
once again thank you for clearing that up for me i just read it wrong the first time. I am from Illinois and fighting the rising obamanation.
Sweet victory...
Alright! As a native Washingtonian and as someone whose sister was held up at gun point in a 'nice' area of DC, I'm happy to hear this.
Doesn't NYC STILL ignore this Federal law?
ping
Garde la Foi, mes amis! Nous nous sommes les sauveurs de la République! Maintenant et Toujours!
(Keep the Faith, my friends! We are the saviors of the Republic! Now and Forever!)
LonePalm, le Républicain du verre cassé (The Broken Glass Republican)
I'm stunned anyone in the judiciary "gets it." Good news indeed.
In a 1981 column he advocated "a law that says anyone found in possession of a handgun except a legitimate officer of the law goes to jail -- period." In 1985 he called for "a complete and universal federal ban on the sale, manufacture, importation and possession of a handgun (except for authorized police and military personnel)."
Boy, my strong support for your candidacy just went down a notch or two. Never pictured you as one of the "it's inevitable so lay down and enjoy it" types.
I am sitting here wondering why this is not being reported on any news channel...even FNC has no coverage...unless I've overlooked it.
The drunken and drugged up Kennedy Klan can now pack heat while in D.C.
/s
That's what I was thinking. If Rudy would come out and say that, and also promise (to his credit, Rudy does seem to be one of those rare politicians who tries to keep his political promises) that he would VETO any so-called assault weapon ban, I would be MUCH more likely to vote for him...
I'll second that W00t!!
This is a great ruling, but I do see an issue - I wish this was a ruling against a state's ban on weapons. Why? Because the 2A has not yet been incorporated as applying to the states as most of the BOR has been. DC is a federal district, not a state. It is alrady clear the BOR applies against the feds.
Read up on the "incorporation doctrine"/"doctrine of incorporation" and 14A and you'll soon see the potential problem.
It is great that the court recognized 2A as a fundamental right, but the question remains whether or not the Supremes would 1. uphold this reversal so that the people in DC can defend themselves and 2. If the Supremes agree that it is an indivicual right, whether or not it is "fundamental" enough to apply against the states.
The "incorporation doctrine" is the nemesis here. Mind you this is a power the black robe royalty vested upon itself and does NOT appear in the Constitution.
The Supreme Court basically claimed the power to decide which rights are fundamental enough that they must also apply to the states.
Ever wonder why 1A applies against the states when 1A clearly states "CONGRESS shall make no law....."? B/C the Supreems declared it was fundamental.
Wow! Great news.
Judge, U. S. Court of Appeals for District of Columbia Circuit Nominated by Ronald Reagan on September 11, 1985, to a new seat created by 98 Stat. 333; Confirmed by the Senate on October 25, 1985, and received commission on October 28, 1985. Assumed senior status on November 1, 2000.
How could it get any worse? Metro is nothing but a "crime pump" moving crime from D.C. to the suburbs and then back home again.
Sorry...should read:
"It is great that the court recognized 2A as an INDIVIDUAL right..."
fighting the rising obamanation.
Good luck with that.
Reasonable restrictions also might be thought consistent with a “well regulated Militia.” The registration of firearms gives the government information as to how many people would be armed for militia service if called up. Reasonable firearm proficiency testing would both promote public safety and produce better candidates for military service. Personal characteristics, such as insanity or felonious conduct, that make gun ownership dangerous to society also make someone unsuitable for service in the militia. Cf. D.C. Code § 49-401 (excluding “idiots, lunatics, common drunkards, vagabonds, paupers, and persons convicted of any infamous crime” from militia duty). On the other hand, it does not follow that a person who is unsuitable for militia service has no right to keep and bear arms. A physically disabled person, for instance, might not be able to participate in even the most rudimentary organized militia. But this person would still have the right to keep and bear arms, just as men over the age of forty-five and women would have that right, even though our nation has traditionally excluded them from membership in the militia.
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