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

[robertpaulsen]

"Since the DC District Court cited US Supreme Court precedent..."

They cited Miller?

Hell, the 9th Circuit cited Miller in Silveira v Lockyer. I believe the 5th Circuit in Emerson cited Miller. Evereyone cites Miller as supporting their decision.

[Congressman Billybob]

You have that right.

ALL amendments, once ratified, become part of the Constitution as if written there in the beginning. The "Incorporation Doctrine," on the other hand, was invented in the 20th century by Justices who used the 14th Amendment to apply to the states parts of the Bill of Rights which, on their faces applied only to "Congress."

John / Billybob

[Dead Corpse]

It was not the intent of the founders to force the states to apply the federal bill of rights.

Yes. It was.

The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree, as is the case in the British government. St. George Tucker. 1803

The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it,this amendment may be appealed to as a restraint on both. William Rawle 1829.

[lugsoul]

Now, if SCOTUS will take the case and affirm...

[Dead Corpse]

You might want to go read the decision before you make any more stupid remarks.

Here's the pdf.

[jmc813]

We gave the Republicans both houses and the Presidency. They didn't do this or anything approaching it.

Ron Paul tried and it got nowhere.

[School of Rational Thought]

By disregarding nearly seventy years of U.S. Supreme Court precedent, If you ignore 70 years how years of precendent remain? Dread Scott - Supreme Court ignores x years of precedent.

[Dead Corpse]

Exactly right. Not sure why this is so hard to understand for so many people.

[libstripper]

This is an arcane, but very important, question for any member of the DC bar who's on this thread and who knows the details of DC appellate procedure: "Does the District of Columbia get to decide whether to appeal this decision on its own or will it be up to US Attorney General Gonzales to decide whether to take an appeal?" If Gonzales gets the final call, the Justice Department has already issued, under AG Ashcroft, an internal opinion that the Second Amendment enforces an existing individual right. Hence, the Justice Department might be able to squash any attempted appeals.

[libstripper]

It is real. Follow the links at the source and you'll be able to read the full (60 plus pages) opinion.

[Dead Corpse]

If it's appealed, it goes en banc first. Then, it can be pushed up to the Supremes.

Not sure if there is a way to short that. You'd think with so many Circuits applying different Constitutional standards to their Citizens Rights and legal protections, a crisis would have to be resolved by the SCOTUS.

[Lurker]

All you've got is your dictum in your hands.

Hehehehe....good one.

before you make any more stupid remarks.

It hasn't stopped him in the past.

L

[roaddog727]

Woo Woo Woo!

Bump-er-oooooooooooooooooo!

[Dead Corpse]

I know. But "no man can be so far lost in the Shadow that he cannot be redeemed".

It's a long shot. But hope costs me nothing... ;-)

[robertpaulsen]

"Keep in mind that even if the SCOTUS finds that the 2nd amendment is an individual right, that will not automatically nullify all gun control laws."

Good news and bad news. The good news: Some future SCOTUS finds that the 2nd amendment is an individual right, and that the 2nd amendment applies to the states.

The bad news: "Arms" in the second amendment is defined by SCOTUS as single-shot, muzzle-loaded rifles ... only.

[RightWhale]

Justices who used the 14th Amendment to apply

The XIV Amend seems to cover just about everything. When you just read it, it doesn't actually say any of that, but under it much of modern USA came into being.

[NinoFan]

John Roberts, Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg were all on the DC Circuit I believe.

[Congressman Billybob]

Since D.C. is under the direct jurisdiction of Congress (see the text of the Constitution), the 2nd Amendment clearly applies to D.C. without any of that "D.C. is a state" argument.

John / Billybob

[tobyhill]

"Judge Karen Henderson dissented, writing that the Second Amendment does not apply to the District of Columbia because it is not a state."


What an idiot! Indian Reservations aren't states either but they are a part of America.

[383rr]

LOL!