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
If you're going to insert yourself and answer the question, then answer the question. If my statement is "patently false", then tell me what interstate commerce the government is not allowed to regulate, and where did you find that information?
Since I am obviously annoying you, by acting in your defense, I shall cease to do so.
Good luck, and good riddance.
Don't post to me anymore, ingrate. I can do without your trolling.
In the summation they state:
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.
Any Commerce clause regulation that made arming ones self impossible is unConstitutional. Like I've been trying to tell you for years. Hence my constant repeating of the Jefferson quote:
"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.
If one theory decreases individual Rights or liberty, the government was to choose the other interpretation that protects Rights.
You just don't get that.
Actually bad luck to RP. He never found an unenumerated right which he couldn't disparage, nor an undelegated power reserved to the people. He advocates the kind of "authoritarian conservativism" that gives the rest of us a bad name. The founding fathers didn't risk all for the greater power of the Federal government - they did it for liberty, something RP apparently despises.
We could all do without YOUR trolling. This thread was cooking along just fine without your Brady Bunch BS...
There are far more scholarly articles than that one out there. Furthermore, the "individual rights" approach, by its very nature, rejects that position.
that link was in another thread on this topic earlier this week, I posted it as a point of discussion.
Sorry, didn't mean to jump on you. ;)
Hey Joe, what do you say I bring suit against the state of NJ for not issuing me a carry permit and cite the 14th amendment?
I just wish I would have thought of it sooner when Alito was still in Newark.
no, no problem. if you have any other links to articles on this topic, please post them.
what does the federalist society (the real one) say about this issue, since that appears to be the main organization that conservatives on the judiciary are a part of.
If a Commerce Clause regulation is unconstitutional, of course it's not allowed. Congress cannot prohibit the interstate commerce of all newspapers or magazines either.
Can you name any commerce that Congress cannot regulate? No, you cannot. Then what in the world is your problem with my "position"?
Because you advocate "regulations" that make it impossible to exercise a Right. Such as the NFA of '34, the GCA of '68, and damn near every State ban we've discussed here that you've chimed in on.
I rescind my comment - since RP thinks I should not post to him, there is no reason not to insult him behind his back. In fact, he insists that I do.
So I shall not tell him that he is an undereducated, statist-loving, Nazi shit. Khruschev would spooge all over him.
I will let him observe that from others reaction.
LOL...
As a life-long gun rights supporter. I would repeal the machine gun act of 1934.
Law abiding gun owners should'nt have to ask permission to own firearms.
While there are exceptions, members of The Federalist Society overwhelmingly support the individual rights view. The Society doesn't have an easy bulletpoint list of everything it believes, but considering the fact that it has seats for 2A defenders in its Civil Rights group, I think the feeling is pretty clear.
Also consider news updates from its Civil Rights wing such as this:
"For the first time in history, a federal court of appeals has unambiguously held that the right to keep and bear arms belongs to individual citizens, and rejected the judicially regnant theory that Second Amendment rights belong to governments or can only be exercised in the service of a government."
http://www.fed-soc.org/Publications/practicegroupnewsletters/civilrights/news2001.htm
which is essentially what this ruling says. That if you are going to show up for Militia duty, you will be expected to meet certain standards and have your equipment ready as delineated. But, this requirement does nothing to stop the free enjoyment of this Right as a private citizen unattached to a militia as it is a "pre-existing Right".
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