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
Exactly. The actual holding of the decision was that the Court was not able to take judicial notice of the fact that a sawed off shotgun could be used by a militia. Presumably, if some evidence were presented, ANY weapon could fit in this category.
What is your interpretation of the tenth amendment and which people does the BOR refer to if not the people of the states.
My apologies, you are correct only on the issue of which party appealed. (It has been about 10 years since I read the case, but that is still no excuse for getting that issue wrong.)
However, you are still wrong with respect to the real issues and my argument still stands, regardless of which party appealed.
Any of the lower courts or SCOTUS could have dealt with the standing issue. None of them did, reaching the merits of the arguments from both sides.
Therefore Miller stands on a procedural posture for the fact that the second amendment protects an individual right.
Can you understand that or will you choose to ignore that fact?
Why? You have a different one?
They are the people of the states. Why would you think they wouldn't be?
Does not the supremacy clause make the BOR the law of the land and not infringeable by the states as stated in the tenth?
Apparently you think they are not covered by the BOR. I'm just trying to understand why you "think" the BOR does not apply to them.
And until then, it only applies to the federal government. Which is what I said.
Hello? Anyone able to read out there? Hello?
"ANY weapon could fit in this category."
Doubtful. If that was the case, the U.S. Supreme Court never would have remanded the case.
I think you need to explain why the supremacy clause does not pertain to the BOR. Is the constitution and the supremacy clause not part of the "LAW OF THE LAND"?
Is the jurisdiction of the constitution then Washington D.C. only?
Where is federal jurisdiction if not over the states in the limitied manner specifically enumerated by the constitutiona and BOR?
Nope. The U.S. Supreme Court could have ruled that the tax was unconstitutional because it was an infringement on the right to keep and bear a shotgun -- without saying who would do the keeping and bearing.
Taxes on products have been ruled unconstitutional without the court identifying who is affected.
"ALL of the judges assigned to that court hear the case and rule on it. Does that include the three who originally ruled. See post 261"
Yes, en back review would include all of the judges --including those on the original judicial panel who made the original decision.
Wrong. Until then it is undecided, in the absence of any decision rejecting incorporation. The premise of common law is that an issue of first impression does not change the law, it merely recognizes it.
http://www.drudgereport.com/04-7041a.pdf
Many of the arguments and questions are actually answered, directly, in the pdf document..
I found it to be an easy read, compared to some legal decisions, and straightforward, and understandable.. plain language, so to speak, not the usual legalese..
I believe the arguments made in this case will be the basis more many more favorable decisions in the future..
That doesn't follow. The SC probably remanded the case so the lower court could dispose of it because Miller never showed.
Then it might not be protected, and that flies in the face of the so-called "sporting purposes" test popular among gun banners now. But short barreled shotguns have been in common usage for a long time, such as "coach guns" and "trench guns". In fact it is hard to conceive of a type of firarm that would not be suited to the militia.
No. The Founding Fathers would never had stood for such an interpretation.
Prior to the U.S. Constitution, we were governed by the Articles of Confederation. The Supremacy Clause says (in effect), "This contract between the states and the federal government (the U.S. Constitution) is now the supreme law of the land. Forget about any other previous contracts. Furthermore, any laws written under this contract (the U.S. Constitution) are also the supreme law of the land".
Parts of the contract apply to the states. Parts of the contract apply to the federal government. The Supremacy Clause doesn't mean everything in the contract applies to the states. Otherwise the states could coin money and set up Post Offices.
As written, the Bill of Rights (actually the first eight amendments) only applied to the states. 150 years after ratification, and after the 14th, part of the Bill of Rights was "incorporated" and made binding on the states.
Correct. The second amendment only applied to the federal government from the day it was written. Until something comes along to change that, and nothing has yet, it remains.
Which, again, is what I said.
Actually the BOR does not apply to the states or the federal government or the states would not be passing laws that infringe on gun rights nor would there ever have been the assault weapons ban nor would the congress be considering a new assault weapons ban. So the BOR and the constitution do not apply anywhere except DC where it does not apply either.
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