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
tcostell was making a comment about the sad and farcical state of affairs here in the formerly great state of New Jersey. But he brings up an interesting point: does anyone foresee citizens in other states bringing new lawsuits, using the same criteria as the D.C. people?
Could make for mighty interesting cans of worms opening up all over this country....
The 14th destroyed federalism. I would favor repeal, including the part that says if you cross the border, squat down and drop a baby, he's a U.S. Citizen.
Bzzzzzzt! Wrong.
"On the same day, Paul Gutensohn received – on behalf of Miller and Layton – notice from the government that it intended to appeal to the Supreme Court. Judge Ragon permitted the appeal. Miller and Layton had 15 days to object to the appeal. There is no record of their having offered any objections.
-- jpfo.org/miller.htm
You're right. You can't have an intelligent discussion with me. You never could.
You owe me a keyboard! A very good tactical nuclear approach. I love it!
I'm guessing he hates it privately, but on the stump in the southern and western states where he's running against his own record on RKBA and right to life issues he would pretend to support it.
heheheh. Glad you enjoyed it!
A plain reading of the text makes it clear. The contorted reasoning and mis-citing of Miller by lower courts, or citing other cases that have mis-cited Miller as precedent in order to reach a predetermined conclusion don't change that.
The entire "collective right" argument has always been disingenuous, not to mention the racial component of original gun control laws in this country. But your'e a smart guy, so you knew that.
Wrong Judge Ginsberg. They were referring to a SCOTUS decision in which RB Ginsberg agreed with Scalia and 2 others.
"Since the early 60's, almost every clause in the Bill of Rights has been incorporated (notable exceptions are the 2nd and 3rd Amendments, the grand jury indictment clause of the 5th Amendment, and the 7th Amendment)."
-- the fourteenth is a cesspool.
Texturally it imposes anything the feds want on the states.
Not true. The 14th reiterates the Article VI fact that our supreme 'Law of the Land' [and its amendments] applies to all officials in the USA, fed/state/local, -- and to the laws they make & enforce.
All laws that could deprive "-- any person of life, liberty, or property, without due proccess --", would be null & void.
It's original intent is murky, with broad statements by it's enactors.
The congressional record of its enactment are clear, - it was intended to stop the still rebellious southern states from infringing on the individual rights of newly freed slaves.
What little I've seen of the ratifying debates in the states - the determining evidence per Madison- points to it's purpose being to end discrimination of rights instead. But the evidence is not clear to me at this point.
Read the Congressional debates. - Rep. Binghams remarks in particular.
Everyone who is eligible should buy a gun and learn how to use it, before it's too late. This would make it completely clear to our Congressmorons and judges where we stand.
"...In Minneapolis and St. Louis R. Co. v. Bombolis, the U.S. Supreme Court rules that the Seventh Amendment right to a jury trial does not apply to state court civil trials. In reaching its decision, the Court looks to the Due Process Clause of the Fourteenth Amendment (the vehicle for applying the Bill of Rights to the states) and concludes that a jury trial in a civil case is not a fundamental due process right."
The fallacy of that theory should be evident to anyone literate enough to read the history of the Constitution's creation. The BOR was added to the original draft to guarantee certain inalienable rights of the people, not to grant rights to government.
The Constitution does not recognize any rights belonging to government, it only grants powers to the federal government through the agency of state appointed delegates to the Constitutional Convention, (except RI which refused to send delegates) and the elected state legislatures which ratified it.
At least that would signify the end of Claire Wolf's "awkward stage." I think that could trigger some interesting events.
Hadn't seen the complaint yet, thanks. I don't think I have the energy to convert that to HTML :-)
Due to the absence of any introduced evidence showing the utility of Mr. Miller's gun to a militia, the Hughes court majority concluded that it had no utility and remanded the case back to the appeals court. It did not render a decision that can reasonably be said to reject or uphold either the individual right position or the collective right position. It merely dealt with the narrow issue of the utility of Mr. Miller's short barrel shotgun as a militia weapon or accoutrement.
The thing that has made Miller such a painful thorn in the side of gun rights advocates is not what it actually said, it's the misrepresentation of the scope of Miller and the intentional misinterpretation of the decision by liberal lower court judges that has for all practical purposes nullified the 2nd Amendment's guarantee of an individual right to keep and bear arms.
Please quote where I said there was no protection before Kelo, or correct your post.
Let's not gloss over my main point with your technicality. State and local RKBA abuses would increase with a Kelo-type decision on gun rights by the U.S. Supreme Court if incorporated.
Quite a declarative statement - now prove it.
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Now I have a question. We have discussed ad nauseum the judicial interpretation of the Constitution with respect to the RKBA, so let's set that aside for now.
If interpreted correctly, would the Constitution prohibit state and local governments from infringing the RKBA, in your opinion?
You do realize that none of the anti-gun organizations get any of their financial support to speak of from individuals? Like many, if not most leftist causes, their money comes almost entirely from foundations. Their position has no broad-based support other than totalitarians like the resident statist who has spewed all over this thread.
Why was this utility important to the U.S. Supreme Court, in your opinion? What were they going after? Why did they ask the question?
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