DC Circuit strikes down DC gun law

How Appealing Blog ^ | 03/08/2007 | Howard Bashman

[cryptical]

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

[robertpaulsen]

"A plain reading of the text makes it clear."

Well there you go (sound of hand slapping forehead)! I never actually did a plain reading of the text so, of course I never saw it! Wow! Thanks!

[tpaine]

Iwo Jima wrote: "-- Are there any constitutional rights in the BOR that have specifically been held to NOT have been incorporated into the 14th Amendment? Or are there just cases that say certain rights have been incorporated and no cases addressing certain rights? --"

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

"Incorcoration" doctrine is itself highly questionable.

The Incorporation Debate
Address:http://www.freerepublic.com/focus/news/687126/posts?q=1&&page=1


Justice Black held the view that all of our rights must be honored by fed, State & local gov'ts:


"-- My study of the historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored, as well as those who opposed its submission and passage, persuades me that one of the chief objects that the provisions of the Amendment's first section, separately, and as a whole, were intended to accomplish was to make the Bill of Rights, applicable to the states.

With full knowledge of the import of the Barron decision, the framers and backers of the Fourteenth Amendment proclaimed its purpose to be to overturn the constitutional rule that case had announced.
This historical purpose has never received full consideration or exposition in any opinion of this Court interpreting the Amendment. --"

[MileHi]

You can look here

http://www.constitution.org/2ll/schol/gun_control_dencite.htm

for more on the rest of my comments. There are your "50" cases you hang your hat on. As I said, disingenuous, bending over backward toward a predetermined conclusion.

[robertpaulsen]

"Please quote where I said there was no protection before Kelo, or correct your post."

You made a big deal about pointing out that:

"It is misleading to say that everyone would "then" have no protection against such infringments on the RKBA. There is no federal protection against state and local infringments "now"."

So, use that same argument regarding the Kelo decision:

"It is misleading to say that everyone would "then" have no protection against such infringments on property. There is no federal protection against state and local infringments "now"."

Correct? Or are you saying that there were such federal protections against state and local infringments before Kelo, but there aren't now?

Certainly if the federal protection used to be there then you can point to a federal case which ruled that way? And why did the USSC rule there was no protection in Kelo when a previous case (which you're going to look up for us) showed there was?

So. Was there federal protection before Kelo or not?

"If interpreted correctly, would the Constitution prohibit state and local governments from infringing the RKBA, in your opinion?"

The courts have repeatedly ruled that it would not.

[robertpaulsen]

Essentially you're saying that the lower court decisions concluding a collective right were based on a flawed interpretation of Miller. Pretty bold statement there, Mr. I-know-what-Miller-really- means.

But hey. Say you're right and all those courts, and all those judges, in all those cases, were wrong. The rulings are still there, bucko.

[MileHi]

But hey. Say you're right and all those courts, and all those judges, in all those cases, were wrong.

Read the link.

The rulings are still there, bucko.

For now. But a review of those cases would bump up against the flawed reasoning and outright dishonest assertions that make up those cases.

You asked someone why the Court was concerned about the utility of Millers short barreled shotgun. It seems clear to me it was because had Miller shown it to be a common part of the militias equipment then the law banning it would indeed be unconstitutional, as the lower court had ruled. Of course Miller didn't appear, and the Court could not just presume facts not in evidence.

[GovernmentShrinker]

Yes, I'm equating Jim Crow laws with laws that prohibit citizens from owning guns. Both are evil, oppressive,, and unconstitutional, and both were overturned by federal judges who "negated the democratically-expressed will of the people", a process at which the Brady Bums are expressing dismay. If the Brady Bums think that "the democratically-expressed will of the people" should trump the Constitution, we should hold them to that principle and assume that they also oppose all other examples of courts choosing the Constitution over "the democratically-expressed will of the people".

[GovernmentShrinker]

True, though given the dicta, it sure sounds like these judges would come down the way on at least open-carry, if not concealed carry too. You can't very well say that the 2nd Amendment protects the right to defend oneself with a gun, and then invent a provision that it only applies inside one's own home. Historically, the right obviously applied outside one's home as well, just like all the other rights guaranteed by the Bill of Rights.

[robertpaulsen]

"It seems clear to me it was because had Miller shown it to be a common part of the militias equipment then the law banning it would indeed be unconstitutional"

And if could not be shown to be a common part?

[Ken H]

My position is that there was federal protection prior to Kelo, because the plain meaning of the Takngs Clause was understood and obeyed at all levels of government. With Kelo, the Court removed that protection.

Had governments not been infringing the RKBA for decades - with the acquiescence of the courts - your Kelo analogy might be defensible. As it is, a collective interpretation of the RKBA would not remove any protections.

_____________________________

My 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?

Your reply: The courts have repeatedly ruled that it would not.

In your opinion, are those rulings correct, or are they in error, cowardly dodger?

[tpaine]

I have a question.

If interpreted correctly, would the Constitution prohibit state and local governments from infringing the RKBA, in your opinion?

Using the clear words of Article VI as a logical base, officials/judges "-- in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary, notwithstanding. --"

It is simply ludicrous to assert that the 2nd is not a part of our Constitution's "supreme Law of the Land"

[robertpaulsen]

"But a review of those cases would bump up against the flawed reasoning and outright dishonest assertions that make up those cases."

Hmmmm. Well, let's just hope that a review of this case and the 5th Circuit's don't turn out to be bumping up against some flawed reasoning and outright dishonest assertions.

[robertpaulsen]

"My position is that there was federal protection prior to Kelo"

You assumed there was protection. Turns out there wasn't.

We also assume "arms" includes semi-automatic pistols and that "to bear" includes concealed carry. We could be wrong there, also. Let's have the U.S. Supreme Court tell us, the same court that told us about Kelo.

"If interpreted correctly, would the Constitution prohibit state and local governments from infringing the RKBA, in your opinion?"

If interpreted correctly in my opinion? What kind of question is that?

If interpreted correctly, the constitution would not prohibit it. As written, the constitution would not prohibit state and local governments from infringing on any of the rights listed in the first eight amendments. That's simply a fact. No opinion necessary.

[Ken H]

If interpreted correctly, would the Constitution prohibit state and local governments from infringing the RKBA, in your opinion?

If interpreted correctly, the constitution would not prohibit it.

Thank you.

[smoketree]

Out of curiosity what is your "interpretation" of the tenth amendment?

[smoketree]

So if "the people" refered to in the BOR are not the people of the states which people from where are refered to?

[King Prout]

indeed!
we discussed this over on DC.
great cause for celebration.

[Texas Federalist]

No matter what the second amendment means, it only applies to the federal government.

That issue wasn't decided by this court. But the language of Section IV of the opinion indicates that this panel of judges, if faced with the issue, would likely incorporate the Second Amendment to the States.

[Texas Federalist]

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?

The Miller case was interesting because Miller fled before the appeal was heard, and did not appear to prosecute the case. The Supreme Court, I do not believe, received any argument from Miller's side and disposed of the case on the narrowest possible grounds.

[robertpaulsen]

Do you think it would? It never has.