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

[the OlLine Rebel]

Is this that old? How come only hearing it now?


"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."

I like that; libs want it both ways. 2nd Amend doesn't apply because it's not a state, but we want to BE a "state" that gets either "representation" or "no taxation".

[ctdonath2]

Did I get it right?

Yes. Court cases only apply within their jurisdictions - not beyond.

That the two cases result in different RKBA results from the rest of the country creates an "equal protection" problem which only SCOTUS can resolve (and will likely find the narrowest possible, and thus very unpalatable, solution to).

[TC Rider]

There are actually justices who believe this?

Only if they've read a history book published before 1975.

[Uncledave]

From Cato:

"The Supreme Court is very likely to review this case, which means we’re about a year away from a definitive ruling from the high court on the meaning of the Second Amendment" (http://www.cato-at-liberty.org/2007/03/09/landmark-second-amendment-ruling-today/)

This makes a very good 2008 election issue for the GOP, bringing the gun issue into discussion which favors the GOP. Also brings into the discussion the importance of SCOTUS judges.

[the OlLine Rebel]

LOL exactly what I was going to say.

They'd probably MISS anyway!

[from occupied ga]

The silence of the MSM is deafening.

Dude, the verdict was issued this morning. They are just getting copies of it, and need at least a few minutes to figure out what happened.

My prediction is that this will be buried in the back page of the papers if mentioned at all and ignored by the TV news. I listened to the so-called news/talk radio here for their noon news and it was not mentioned.

Remember the big anti-gun initiative in Wash state a couple of years ago and how the MSM was breathlessly reporting it prior to the event? How it was being financed by Bill Gates? It was all over the news up until it actually happened. And the day after not a single word on any news program I listened to. By the fact of its absence from the news I knew it failed, but I had to look it up on the internet, because the MSM dropped it like it had AIDS. ANYTHING that is favorable to individual rights, gun ownership, or that curtails the powers of government is anathema to the MSM.

[Atlas Sneezed]

Until SCOTUS actually takes up these cases, this ruling only applies to the DC area.

---

All this does is overturn the DC law. No effect anywhere else on other laws.

But there is likely to be granted a "stay" inevitably requested by the DC government goons, pending the inevitable appeal.

That means that even though a court has ruled otherwise, DC cops will toss people in jail for having handguns in their homes, and DC courts will happily sentence them to prison.

[mr_hammer]

"Still I like his food...except the bacala....and pig innerds."

Wife and I like Emeril...gain weight just watching!

[green iguana]

What in the world did that comment mean? Did you understand what C.B. was saying?

[Ghost of Philip Marlowe]

I think two other courts have made this decision in the past, not that that has stopped those outside their jurisdiction from trying to interpret "the people" as "the state."

Our greatest threat in regard to the 2nd Amendment is not so much the Judicial branch as it is the Legislative branch of our government. The anti-2nd Amendment crowd know the Constitution guarantees us the right and that the courts are not always their reliable allies, thus they chip away at that right through incremental restrictions on exercising that right (time delays, types of firearm and ammunition, the attempt to barcode ammo, the attempt to implement prohibitive costs through taxing ammo, etc.)

[from occupied ga]

That means that even though a court has ruled otherwise, DC cops will toss people in jail for having handguns in their homes, and DC courts will happily sentence them to prison.

Only some people. I remember the comPost's Carl Rowen didn't get charged for shooting at a couple of teenagers dipping in his hot tub.

[Carry_Okie]

Then why does a person need a conceal carry permit to be able to carry a weapon concealed?

So that the government can know who all the gun owners are.

Silly question.

[Texas Federalist]

Isn't this the first court case stating that the 2nd Amendment applies to individuals? This is absolutely landmark, in that case.

Two other courts, the 5th and the 10th have stated that the 2nd Amendment applies to individuals. What makes this case landmark is that this is the first court that has used the 2nd Amendment to strike down an existing gun law. This is huge!

[Dead Corpse]

pg 27.

We also note that at least three current members (and one former member) of the Supreme Court have read “bear Arms” in the Second Amendment to have meaning beyond mere soldiering: “Surely a most familiar meaning [of ‘carries a firearm’] is, as the Constitution’s Second Amendment (‘keep and bear Arms’) and Black’s Law Dictionary . . . indicate: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.” Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting, joined by Rehnquist, C.J., Scalia, J., and Souter, J.) (emphasis in original). Based on the foregoing, we think the operative clause includes a private meaning for “bear Arms.”

[DPMD]

Well now Rosie O'Dumbly can bring her guns out of the closet as well.

[longtermmemmory]

careful "respects the ruling" is meaningless in lawyer land. Everyone respects rulings via stare decisis


Does he ARGREE with the majority?
Does he specifically maintain the second amendment right is an individual right?

No more of this support hunters BS.

[jdege]

I would like to find and slap the Freepers who said that the Emerson decision was actually bad news for RKBA.

We build things one step at a time.

This decision doesn't say that states can't ban guns. Whether the 2nd is incorporated and restricts states is still undecided.

It doesn't say that the federal government can't impose registration and/or licensing. That also is still up in the air.

But it does say that the federal government can't ban guns.

Which is the most minimal finding possible, other than the minor little detail of establishing that it is an individual right.

All rights are subject to regulation, to some degree. We will continue to argue about what regulations are reasonable and proper. But if this ruling is upheld by SCOTUS, we will have permanently removed the gun-banners' dream of disarming society.

[Popocatapetl]

This is an incredibly important decision.

Gun law can get terribly confusing in a hurry.

For 30 years (Nixon administration), the Justice Department argued that the 2nd Amendment applied to only government ordered militias; but ironically, this meant that individuals had *more* gun rights, *because* they do not need to be "ordered", that is, regulated, by the government.

However, in 2001 (Bush 2), this was reversed, so that now it is policy that the 2nd Amendment *does* apply to an individual's right to bear arms. And it is being argued that in turn *this* means that individuals have *more* rights to bear arms.

On top of that, for years, the federal government has ignored blatantly unconstitutional actions on the part of (blue) States, as far as gun control.

For their part, those States have been careful to not let such things be appealed too high up, where they had a strong chance of being overturned.

For example is NYC's gun laws, regularly used to intercept and arrest people who are legally transporting guns in interstate commerce, such as at the airport. Entirely illegal, and should be stopped.

However, if this decision is appealed to the SCOTUS, and they affirm an individual right to keep and bear arms, then many of these blue State laws go right out the window. Anyone arrested can go right to a federal judge to ask that their arrest be voided.

[EternalVigilance]

This makes a very good 2008 election issue for the GOP, bringing the gun issue into discussion which favors the GOP. Also brings into the discussion the importance of SCOTUS judges.

All the more reason NOT to nominate gun-grabbers like Giuliani or Romney.

[M203M4]

This is huge. I never knew they could read! It is one small step now to iterate over the rest of the Constitution. But if I hold my breath, will it be viewed as suicide?