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
Sorry, that bit I quoted didn't include much opinion. Here's a better one. I think the position is rather clear.
From Nelson Lund, part of the Federalist Society's Civil Rights group:
"udge Cummings' opinion is much better reasoned than most Second Amendment decisions, and the Fifth Circuit is probably less hostile to the right to keep and bear arms than any other court of appeals. The federal courts have never struck down any statute under the Second Amendment, and the Supreme Court has not taken a Second Amendment case since 1939. Emerson could therefore lead either to a major advance or a major setback for the right that Justice Story called "the palladium of the liberties of a republic.""
And the link to go with it, LOL. http://www.fed-soc.org/Publications/practicegroupnewsletters/civilrights/second-civv3i1.htm
Anyway, you get the idea. :)
What can of worms could the judiciary open up? State and local governments have had a free hand to ban at will. Can you outline a Second Amendment ruling that would negatively affect the RKBA at the state or local level?
One other thing to keep in mind is that the Federalist Society doesn't demand purity from its members like some organizations. As I said before, there is no list of things that everyone must believe.
In other words, although there is strong support for the individual rights view, both in the membership and in the leadership, it is possible to have a member who does not support such a view. That's why membership is a good indicator, but not a perfect one when evaluating judges.
The dissenters to the people: The Bill of Rights do not apply to the residents of the District of Columbia.
Aw, why so glum?: http://news.yahoo.com/photo/070309/480/dcjm10603092212;_ylt=AlHVgNtaEqi3lU6VxzbprElH2ocA
Not yet. However, if you reject the "militas" argument and focus on the individual right, as the DC Circuit did here, then incorporation becomes a much more like possibility.
And before any anti-gunners freak out, even if the SCOTUS does eventually hold it applies to the states, it's not going to treat it like the 1A. In other words, plenty of regs will be allowed, just not bans or regs that are the functional equivalent of bans.
I assumed there would be a great Wailing and gnashing of teeth" among supporters of gun bans. A trip to DUmmieland proved me right. As did a look at the Brady Center website. Interesting thing about websites like the Brady one. They never make provisions for comments...no e-mail provisions, never a toll free number, only snail mail or faxes and regular numbers. They KNOW they are a small minority and only preach to a very small but vocal choir. But despite what the DC mayor is saying about the decision, it is a great day for the common resident who does not have armed bodyguards, like his, to protect them.
There are a few trolls here who don't particularly deserve politeness or courtesy.
Nope. You're confused. I merely pointed out the government's power to write the regulations. That doesn't mean I support the regulations.
If the decision is upheld, it will be huge. People like that crappy Mayor won't be ablle to run roughshod over our gunrights.
Heeee ... let it all out. Don't hold back. Tell us how you really feel.
Liar.
How dare you talk to one of our biggest statists that way!!!
;)
It's a free country and a web forum dedicated to Freedom and our Republic. I'll treat my sock puppet with care, no worries there. ;-)
If this holds all the way to SCOTUS, we'll soon be testing the definition of the word "Infringe".
The Supreme Court said it in Justice Thomas' opinion in US v. Verdugo - Urquidez, but the remarks were 'dicta.'
Bang bang, I hit the ground
Bang bang, that awful sound
Bang bang, my baby shot me down.
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