PWNED!!!!
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
wow
If anything, it says that if any arms ARE protected, it's those that the military uses, e.g. M-16s and M-60s. So when people cite Miller to support an AWB, they twist things oppositely to what was intended. (As usual.)
I would hope that either Justice Ginsburg or Justice Stevens are gone and replaced by a new Bush appointee before that happens. Right now, I worry about the outcome of that SC case if Justice Kennedy is the "swing" vote. If Bush makes a new appointment -- confirmed by the Senate or as a recess appointment -- in the mold of Alito and Roberts, I would not worry about the outcome of that case.
John / Billybob
There you go with the lies again.
They specifically stated that just because a Citizen lives in DC, does not mean that the Constitutions protections for their Rights do not apply.
Just because it guts every gun grabber argument you've ever used on these boards is no reason to resort to further dishonesty.
"The 4th Circuit Court of Appeals is likely the next step. They may overturn this.
But hope remains. Since the DC District Court cited US Supreme Court precedent...this may yet stand if it goes that far. And I think it will."
This does not sound right. The DC court IS the Appeals Court, the 4th does not enter in. If it is appealed further, it would be to the full DC Court and then to the Supremes.
Except for that tiny fact that the judges on that court are all hand-selected by the President of the United States.
I think that's why they call this court 'Supreme Court, Jr.'.
Are there any USSC justices that served on the DC Court of Appeals, to your knowledge?
From Dalton:
Finally, the government argues that the Gun Control Act, of which section 922(o) is a part, should not be viewed as repealing the National Firearms Act, citing a provision of the Gun Control Act passed in 1968 to that effect. The court in Rock Island Armory rejected the same government argument, observing that "the 1968 Congress cannot bind the Congress of 1986, which decided to ban transfer and possession of machineguns. P.L. 99-308, 100 Stat. 453 (May 19, 1986). Further, a Congressional declaration in 1968 does not solve a constitutional problem which arose in 1986. The ban enacted in 1986 and the government's refusal to accept registrations and tax payments, simply left the registration requirements with no constitutional basis."
And US v. RIA:
The enactment of 18 U.S.C. sec. 922(o) in 1986 removed the constitutional legitimacy of registration as an aid to tax collection. This is because the government interprets and enforces sec. 922(o) to disallow registration, and refuses to collect the tax. Farmer v. Higgins, 907 F.2d 1041, 1042-44 (11th Cir.1990), cert. denied, - U.S. - , III S.Ct. 753, 112 L.Ed.2d 773 (1991). Thus, sec. 922(o) undercut the constitutional basis of registration which had been the rule since Sonzinsky.
Finally, the prosecution quotes an enactment passed in 1968 that the provisions of Title I of the Gun Control Act shall not modify or affect the National Firearms Act. (Footnote 15) However, the 1968 Congress cannot bind the Congress of 1986, which decided to ban transfer and possession of machineguns. P.L. 99-308, 100 Stat. 453 (May 19, 1986). (Footnote 16) Further, a Congressional declaration in 1968 does not solve a constitutional problem which arose in 1986. The ban enacted in 1986, and the government's refusal to accept registrations and tax payments, simply left the registration requirements with no constitutional basis. It is the duty of the judiciary to declare such laws unconstitutional. Marbury v. Madison, I Cranch. 137, 176-77, 2 L.Ed. 60 (1803).
In sum, since enactment of 18 U.S.C. sec. 922(o), the Secretary has refused to accept any tax payments to make or transfer a machinegun made after May 19, 1986, to approve any such making or transfer, or to register any such machinegun. As applied to machineguns made and possessed after May 19, 1986, the registration and other requirements of the National Firearms Act, Chapter 53 of the Internal Revenue Code, no longer serve any revenue purpose, and are impliedly repealed or are unconstitutional. Accordingly, Counts l(a) and (b), 2, and 3 of the superseding indictment are
DISMISSED.
Reads to me like the entirety of 922(o) was struck as it lost the tax nexus that made it constitutional.
Uh huh. Just like federal judges "negated the democratically-expressed will of the people" in southern states with Jim Crow laws. There is no right to vote away other people's Constitutional rights.
PWNED!!!!
Re-read the FedCon's Art 6 Para 2. Then re-read Amend 2. the 14th re-iterated what so many States were ignoring due to the slavery issue.
I'm sure you have, therefore, an explanation for the Preamble to the Bill of Rights?
"THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution."
Looks to me as though they intended the BOR to apply to the newly formed federal government.
(Note: "in the Government" not "in our governments". Also, "its institution" can only be the instituting of the federal government)
That would be effin' awesome.
I concur with your amazement over this ruling. Half way through I almost expected a "can you imagine if this were true" line that indicated a vanity post only. As a lawyer I am very excited about what this may bring if confirmed by SCOTUS. I think we have at least a 50/50 shot so long as our pragmatic CJ can demonstrate to Kennedy that this is a workable opinion. All in all very exciting news.
Excellent.
They're actually taking it pretty well over there. That's the funny thing about DU. They're morons on everything else, but it seems as if most of them are pro-gun.
Congress OF THE United States begun and held at the City of New York, on Wednesday the Fourth of March, one thousand seven hundred and eighty nine.
THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution
RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States, all or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.:
ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.
This clearly is all the "incorporation" the Amendments need to be part of the "Supreme Law of the Land", the "laws of any State to the contrary notwithstanding", and "the Judges of every State shall be bound thereby". "Shall not be infringed".
Again, your arguments are completely gutted.
John / Billybob
P.S. I am not Clayton Williams in disguise.
pg 52/53
It follows that the weapons described in the Act were in “common use” at the time, particularly when one considers the widespread nature of militia duty. Included among these militia weapons were long guns (i.e., muskets and rifles) and pistols. Moreover, the Act distinguishes between the weapons citizens were required to furnish themselves and those that were to be supplied by the government. For instance, with respect to an artillery private (or “matross”), the Act provides that he should “furnish himself with all the equipments of a private in the infantry, until proper ordnance and field artillery is provided.” Id. at 272. The Act required militiamen to acquire weapons that were in common circulation and that individual men would be able to employ, such as muskets, rifles, pistols, sabres, hangers, etc., but not cumbersome, expensive, or rare equipment such as cannons. We take the outfitting requirements of the second Militia Act to list precisely those weapons that would have satisfied the two prongs of the Miller arms test. They bore a “reasonable relationship to the preservation or efficiency of a well regulated militia,” because they were the very arms needed
53
for militia service. And by the terms of the Act, they were to be personally owned and “of the kind in common use at the time.” The modern handgun—and for that matter the rifle and long-barreled shotgun—is undoubtedly quite improved over its colonial-era predecessor, but it is, after all, a lineal descendant of that founding-era weapon, and it passes Miller’s standards. Pistols certainly bear “some reasonable relationship to the preservation or efficiency of a well regulated militia.” They are also in “common use” today, and probably far more so than in 1789. Nevertheless, it has been suggested by some that only colonial-era firearms (e.g., single-shot pistols) are covered by the Second Amendment. But just as the First Amendment free speech clause covers modern communication devices unknown to the founding generation, e.g., radio and television, and the Fourth Amendment protects telephonic conversation from a “search,” the Second Amendment protects the possession of the modern-day equivalents of the colonial pistol. See, e.g., Kyllo v. United States, 533 U.S. 27, 31-41 (2001) (applying Fourth Amendment standards to thermal imaging search).
Anything that could be used for militia service or self defense is expressly PROTECTED. This would include machine guns.
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