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
Oh, I see. You're one of THOSE.
They remanded it, saying they had no idea if the shotgun was useful to a milita. They could go no further in the case.
So you are saying now that the 2d and all other amendments only apply to people under oath to the federal government. What they really meant by "the people" was only those in the federal government. Does that mean employees of the federal gov. or people elected to the federal gov.? What exactly do you mean by it only applies to the federal government?
So a resident of a state who worked for or was elected to federal office then that person was no longer under the jurisdiction of the state of which he was a resident?
I really don't understand how you can be so convoluted in your thinking. The federal government applied to all the states limited by the constitution and BOR as stated in the tenth amendment.
One of what?
So you are saying that the federal government NEVER stepped in to enforce any federal laws being broken by the states?
No federal civil rights laws were ever enforced by the federal government?
Might not? How about would not?
Meaning this case wasn't about an individual RKBA. If it was, the weapon would be immaterial.
It was important to the Supreme Court to know if the weapon was suitable to a militia. Why? Because if it was suitable, then the tax would be an infringement on the ability of a state to form a militia armed with those particular weapons.
If it wasn't suitable for a militia, then the state could form their militia without interference.
One last ditty. Who decides if the weapon is suitable? The Miller case was remanded because the suitability was in question. Think about it. Who is in the only position to make that determination?
As written, the Bill of Rights (actually the first eight amendments) only applied to the states federal government.
Please go to the above. It explains it better that I can. Read Bar To Federal Action and Incorporation.
It takes ten minutes and it's easy reading. It should bring you right up to speed.
So only some of the amendments apply.
Do we have a cafeteria constitution?
Just pick and choose what you want?
It means that Congress cannot write a law infringing on freedom of speech, or the RKBA, or quarter soldiers in your house, or search you without a warrant, etc. States could do this. But the feds couldn't.
That all changed later. Read the link I gave you.
You just don't get it do you?
There can be no ruling unless both parties have standing.
Miller was asserting a violation of his second amendment rights as in individual.
The courts did not dismiss the case for lack of standing, which it would have had to do if the Miller could not assert a violation of his rights as an individual.
The court did not dismiss the case, nor did the government move to dismiss the case for lack of standing on Miller's part, and proceeded to rule on the merits of the case. Therefore Miller had standing, i.e. could assert a violation of his (individual) second amendment rights.
Therefore the Miller case, among other things, stands for the fact that the second amendment is an individual right, not a collective one.
If you cannot understand this very basic principle of law, it is useless to discuss this with you.
Good day.
This *was* the circuit court. The only other "appeal" is to the Supreme Court of The United States.
No, a federal law is the law of the land. Everyone must obey it. No question. A state cannot negate it with their own law.
I'm referring to the BOR. The rights covered by the first 8 amendments were only protected from federal infringement. For example, the federal government could not shut down a newspaper. A state could. The federal government could not establish a religion. States could ... and did! Funded with tax dollars! Massachusetts did not disestablish its official church until 1833.
They did, BUT they still ruled against the person who had violated the "gun law". Thus the "individual right" stuff could be considered dicta, since in the end it did not affect the final outcome.
Not so this case, where the individual rights ruling is critical to the ruling.
I understand you perfectly now.
Let's just pretend the tenth amendment doesn't exist and then the rest falls into place.
So how do we pretend that the tenth does not exist?
Of course.
It never has.
And you want to keep it that way:
If interpreted correctly, would the Constitution prohibit state and local governments from infringing the RKBA, in your opinion?
robertpaulsen: If interpreted correctly, the constitution would not prohibit it.
It's called federalism, big guy. Something that probably scares the bejeezus out of you since there's no central authority.
Maybe you can explain why you feel the 10th has to go away?
Nice try, I know that is where you desperately want to get. Being a member of the "organized" or "unorganized" militia is only one of several reasons "the right (due to anyone by just claim, legal guarantees, moral principles) of the people (individual citizens) to keep (to hold or retain in one's possession) and bear (carry) arms (weapons, esp. firearms). Name a type of firearm that is not suited to the militia.
Parts of it clearly do. States are prohibited from maintaining a Navy or Army, they are prohibited from collecting tarrifs on goods exported to or imported from other states. They are forbidden from making treaties with foreign nations.
But if you mean the Bill of Rights, that is subject to debate. Except for the first amendment, which clearly states *Congress* shall make no law.
However the original intent of the 14th amendment was to apply the BoR to the states. That's how it was understood by both proponents and opponents. Only some "Men in Black" who didn't like that notion, read it differently.
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