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
Visiting Maryland,
Please be Wary,
In this State,
No Right to Carry.
Giuliani already enforced the New York City ugly gun law, which was much more destructive to the second amendment than the Clinton ban. He's been saying that the second amendment is about hunters for years, he recnetly said it again.
Indeed we were.
To establish that the 2nd amendment means an individual right
instead of a collective one is the big point. I am delighted the court gets it.
Exactly. And once you've established that it is an individual right against the federal government (not collective), then saying that it also applies to the states (via incorportation) just like the other amendments in the BoR is the natural course. This is an important first step. Let's hope the SCOTUS affirms.
You could end up with something like a Kelo decision for guns. No, it doesn't affect state laws. But it sure as hell influences them.
It effectively gives a federal green light to state and local abuses, depending on how narrowly the U.S. Supreme Court defines a right. States may still protect property rights. Yes. Nothing has changed there. BUT, they now know what the can get away with and you see them trying.
Incorporate the second amendment then have the U.S. Supreme Court say it doesn't protect concealed carry. Or semi-automatic handguns. Then watch the Brady Bunch go into high gear at the state and local level.
I hope it gets there and that they do. It will begin to undo a lot of mischief AND put a lot of politicians in a position where they will have to be explicit about their views.
I could call him a "faggot", but then I'd have to check myself into rehab.
I'm not well versed on the subject enough to speculate. but even gun rights organization have been reluctant to toss this thing into the realm of the federal judiciary. remember, these are the guys who affirmed McCain/Feingold, who overturned the takings clause in the 5th amendment with the Kelo decision.
Texas doesn't want NY's guy laws, and they shouldn't. But NY doesn't necessarily want Texas' gun laws either. there is a balance to be struck here.
Please see el Gato's post #437 for the link.
Now, be nice fellas--ya heah!
Because you, like too many others in the United States, like to hide behind the skirt of the Commerce Clause. Liberals and Conservatives frequently run to hide behind 'states rights' and the 'commerce clause' when it suits them and emerge to rail against it when it doesn't.
In any case, read United States vs. Lopez where the USSC held that mere possession of a gun near a school is not an economic activity that has a substantial effect on interstate commerce.
Chief Justice Rehnquist dismissed the government's argument, reasoning that if Congress could regulate something so far removed from commerce, then it could regulate anything, and since the Constitution clearly creates Congress as a body with enumerated powers, this could not be so.
That is perfectly germane to today's particular discussion that you brought up about the Commerce Clause, which ought to have nothing to do with the DC handgun ban reversal.
So knock it off about the Commerce Clause. It's all you ever talk about.
Thanks.
BTW, I agree with you that a pro-incorporation ruling would be desirable given the current state of things (even taking into account the risk).
Five justices defining the rights of every single citizen.
Since free speech includes nude dancing (obviously the framers's intent) then every state must allow it. Since homosexual sodomy is a U.S. Constitutional right to privacy issue, then every state must allow it. Abortion? States must allow it. No choice in the matter. You can't get away from it.
Five justices running the country. And people want those five clowns interpreting the second amendment for all of us?
Unreal. Utter stupidity.
You nailed it. For the first time ever, a federal court has stricken down a gun control law!!!!!!! I'm all atingle...
Note that they did so without incorporating the second amendment though. Since D.C. is a federal district, there was no need to incorporate because the bill of rights applies directly-- as opposed to via the 14th amendment for state laws.
Don't worry, President Rodham will replace the federal judges with her own selection and get this changed around. Then BANG.
I suppose that it's possible to open a gun store in the same DC building that the Brady Campaign operates out of.
AH! Such things as dreams are made of...
Think about it.
The Founding Fathers realized the need for the individual AND the collective right to ensure we would be able to check a tyrannical government.
What good is a collective right if the individual can be deprived of arms?
What good is an individual right if a group of such can be labeled "terrorists" or "hate groups" and oppressed accordingly?
Thank you for the best laugh I've had today!
I responded to the poster who initially brought it up. I suggest you go talk him about how it's not germane and get out of my face.
Oh, Lopez had nothing to do with interstate commerce. It dealt with a federal statute concerning local activity that could have an effect on interstate commerce. Similar to Morrison. And similarly rejected. And rightly so.
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