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
Yep. I admitted my error. I thought I read the District of Columbia Court of Appeals, and it was the Court of Appeals for the District of Columbia Circuit. Shoot me, a$$hole.
"2. You made an erroneous comment concerning who could overturn this Court"
I got lazy and took it from another poster. I corrected it. Why didn't you jump on him?
"You jumped to conclusions concerning the majority opinion based on a few lines from the dissent you had read in a news article"
Yep. It was part of a sarcastic comment to a friend. Lighten up.
"4. You don't seem to understand the Miller case at all."
I'll go toe-to-toe with you on Miller any day of the week, you lightweight loser.
“This ruling represents the first time in American history that a Federal appeals court has struck down a gun law on Second Amendment grounds. While acknowledging that ‘reasonable restrictions’ to promote ‘the government’s interest in public safety’ are permitted by the Second Amendment, the two-judge majority substituted its policy preferences for those of the elected representatives of the District of Columbia. Brady CampaignIt gets better
If the ruling in this case is upheld by the U.S. Supreme Court, it has the potential to lay the groundwork for literally every local, state, and federal gun law in America to be challenged: from the federal ban on gun possession by felons, to the ban on carrying guns onto airplanes, to the ban on the manufacture of fully automatic machine guns for civilian use. Violence Policy Center
How about you tell us where the Judges in this particular case got their Miller conclusions wrong then...
“It applies to Individuals. It protects their RKBA no matter where in the US they are, even the District of Columbia. No Federal, or mere State law, may infringe on this Right as per the Constitution.”
I wish your statement were correct; but unfortunately it’s not given two aspects of law.
One, the US is divided into 13 Courts of Appeals, meaning that all Federal cases start in a local District court. The direct appeal is to one of the 13 Courts of Appeals. Decisions in one Court of Appeals are not binding in others.
Two, during the 1800s, Constitutional cases held that the Bill of Rights applied only to the Federal government and not to the States. During the 1900s, a series of US Supreme Court cases interpreted the 14th Amendment to stay that certain of the Bill of Rights did apply to the States—this process is called “incorporation of the Bill of Rights.” Many argue that by today all of the Bill of Rights have been incorporated, but we have no Supreme Court case that has said so, and the question as to whether the Second Amendment has been incorporated is still open.
The Parker case dealt with local law in DC, but prior cases have held that all local law in DC is Federal law because DC is authorized by Congress—it’s not a State. That’s why the incorporation question was not answered in Parker, meaning that Parker does not provide law for either incorporation or not incorporation of the Second Amendment.
I said it applied, dumbass. It protects against federal infringement, dumbass.
Show me where the opinion says it protects individuals against state infringement. C'mon. You read it, right? Point it out or shut your trap already.
Yip, yip, yip. Like an annoying little dog.
Er... no. It protects against ANY infringement dumbass. Read the f*cking decision before you make an even bigger idiot of yourself.
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).
Yes... you are yipping like an annoying little dog. Why you haven't gotten teh Zot yet for your trollish behavior is beyond the ken of mortal man....
Ahem. The DC Gun Ban is a local ordinance, not a Federal Law.
Dumbass.
L
No kidding!
On the Excite.com news page, this story is dead last. Yahoo.com has it below the middle of their top news stories. AOL.com does not even mention the story in its top news.
However, if true, then the BATFE is now in contempt of Court...
My position is the constitutional position -- the government can regulate the interstate commerce of everything.
Now, as a return favor, please tell me what interstate commerce the government is not allowed to regulate, and where did you find that information? If you cannot find that information, then I'll ask you: What is wrong with my position and why are you even bringing it up?
You are starting to annoy me.
My .45 Ruger "Rosie" thanks you for the post!
"Ahem. The DC Gun Ban is a local ordinance, not a Federal Law."
You can see my post 544 above. DC is unusual in that all the local law is treated as Federal law because Congress created DC. This is explained in Footnote 13 on pages 39-40 of the Parker decision.
Be specific...violent crime will go down. But congress will continue to meet in CD so the general crime level should remain about the same.
Which is patently false.
"When an instrument admits two constructions, the one safe, the other dangerous, the one precise, the other indefinite, I prefer that which is safe & precise. I had rather ask an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless." Thomas Jefferson, letter to Wilson Cary Nicholas, Sept. 7, 1803.
The Judges in this decision agree with a broad interpretation of the Second protecting an Individual Right. Any Laws or statutes that diminish that Right were ruled unConstitutional in their reasoning.
I asked if the article's "Supreme Court" reference was the Miller case. It was. I was right. End of story.
Robert is correct that they didn't decide the incorporation question. If this case is affirmed by SCOTUS, it will make a national ban on arms impossible. It's also probable that such a decision would prohibit "legal in name only" restrictions, so it would likely prohibit a few harsh regs that made the right one only in theory as well. The question would then become whether something is merely a regulation or whether it has the practical effect of a gun ban. State laws would still be immediately valid under this scenario.
HOWEVER, contrary to what Robert assumes, I think it quite likely that if the SCOTUS says it is an individual (instead of collective) right against the federal government, then it will have no problem saying it applies to the states as well. The non-incorporation argument does not do well once one takes an individual rights approach against the federal government. In order to take the individual rights approach, the DC Circuit had to REJECT the militias argument.
What many anti-gunners fail to realize is that if you accept "we the people" and not "militias" in terms of the federal government, which is what the DC Circuit did here, then it makes it functionally equivalent to every other amendment in the BoR. Given the Court's history, incorporation would be almost a guarantee at that point.
This IS a big case for precisely that reason.
I love the way you think.
New Jersey on the other hand hasn't issues a carry permit to a non law enforcement officer in over 20 years.
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