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

[CharlesWayneCT]

Please don't get me wrong -- I am one of those who appreciate you putting your link there, because I forget to look for your articles, and like to read them.

I just should have made it clear I was commenting on that article, and not your post regarding the gun issue.

I was razzing you for your support of Rudy.

[Lurker]

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

I prefer the pessimists version. "There are none so blind as those who will not see."

But hope costs me nothing... ;-)

Other than moments from your life you'll never, ever get back.

Best of luck with the long shot, though.

This is a very good day my friend. Very good indeed.

L

[Congressman Billybob]

No, an appeal does not go to "en banc" first. Anyone who loses a case can request an "en banc" review, meaning all judges of that Circuit participate. However, more than 90% of the time a Circuit will refuse that review.

Parties and their counsel always have a right to request SC review. Those, however, are denied about 99.5% of the time.

John / Billybob

[patton]

Clearly.

[zeugma]

would strongly suggest that you READ the Supreme Court's U.S. v. Miller decision,

i have a copy of the Miller decision on my website that includes most of the court documents surrounding the case.

Gun-grabbers are fond of citing this case as supporting their claims, but in fact it does just the opposite.

You are absolutely right about that. 

[robertpaulsen]

"Is there really any difference on how you would behave if you had a full auto assault rifle as opposed to a revolver?"

Me, or some whack job who made the news because he showed how he would behave?

[zendari]

lol!

With Republicans like this, who needs Democrats?

Reagan and Bush I had 12 years and did a miserable job with the judiciary.

Long after he is gone, Bush II's legacy, despite a few setbacks, will be reigning in the activist courts.

[NinoFan]

While you're correct that this won't have any effect on state gun laws, the DC Circuit is much more than the equivalent of a state supreme court. Its rulings have an effect on DC obviously, but it also decides many cases arising out of federal agencies and their huge power. Because the federal agencies and government have power throughout the land, it is considered the most important Circuit Court in the nation. Decisons made there often do impact the entire country.

[Lurker]

Me, or some whack job ...

There's a difference?

L

[Atlas Sneezed]

the SC should have taken the Emerson case a year ago, to eliminate the conflict among the Circuit Courts

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My understanding is that the individual rights part of Emerson was dicta, because it was not needed to uphold Emerson's conviction, as the holding did. That made is easy for the SC to duck. Harder in this case when individual rights was a key essential element of the holding.

[green iguana]

Anyone who loses a case can request an "en banc" review, meaning all judges of that Circuit participate.

I was under the impression that the judges who ruled on the appeal do not sit en banc. Is that incorrect?

[NinoFan]

"Parties and their counsel always have a right to request SC review. Those, however, are denied about 99.5% of the time."

A bit of an understatement. ;)

[Congressman Billybob]

Razzing cheerfully accepted. I might be right, or wrong. Events will prove out. Either way, we'll know the results early since 63% of the nation will have voted in Presidential Preference Elections by 5 February, 2008.

John / Billybob

[jmc813]

Parties and their counsel always have a right to request SC review. Those, however, are denied about 99.5% of the time.

Do you think there would be a better chance of this particular appeal making it to the SC?

[zendari]

Now, does that mean that Thomas Jefferson wanted individual citizens to own cruise missiles? Tanks? Grenade launchers? It's hard to say, exactly, since they weren't around at the time. Certainly private citizens owned ships and cannon, which were clearly military grade of the time. A letter of marque serves no purpose if there aren't heavily armed citizens to employ. One could infer that the Founding Fathers wanted the citizens to have pretty much anything that the government could.

There was a distinctino between arms (guns, swords), and ordinance (cannons).

'Arms' seems to entail (as a loose definition) anything that can be carried in 2 arms.

[Ken H]

At least the gun grabbers will have green beer to cry in next week.

[cryptical]

Heh. Gotta love it when the Admin Moderator edits your post by ADDING EMPHASIS!

I'm a modest guy, nice to make it to the breaking panel :)

[digital-olive]

WOOOOOHOOOOO!!!

I hope that there are many more desicions like this!

[jmc813]

There's a difference?

SIZ-NAP!

[Atlas Sneezed]

It seems to me that under what appeared to be their intent, they'd be more open for the banning of handguns (as they are more useful in crime than in warfare)

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So why are troops issued pistols?