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DC Circuit strikes down DC gun law
How Appealing Blog ^ | 03/08/2007 | Howard Bashman

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


TOPICS: Breaking News; Constitution/Conservatism; Culture/Society; US: District of Columbia
KEYWORDS: 2ndamendment; banglist; devilhasiceskates; districtofcolumbia; firsttimeruling; flyingpigs; frogshavewings; giuliani; gunlaws; hellfreezesover; individualright; rkba; secondamendment; selfdefense
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To: SmithL
Until SCOTUS actually takes up these cases, this ruling only applies to the DC area. And the Texas ruling would only apply in that Circuit area. And those of us in California are still stuck with the 9th Circus ruling.

You got it. The 5th Circuit ruling may, may that is, have only been dicta, not necessary to reach the result the court applied. They ruled against Emerson, who was in violation of the "domestic violence misdemeanor gun ban. They did rule the second protects an individual right, but that the Lautenberg amendment did not violate that right. Personally I think they were setting up a situation where the Supreme Court would hear the appeal, due to differences among the circuits, but in the end the SC did not hear the appeal, instead refusing to hear the appeal.

Now we have a clear difference, with no question of dicta, between the circuits, which should induce the Supremes to take on the case.

861 posted on 03/10/2007 2:29:48 PM PST by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: MileHi
"Name a type of firearm that is not suited to the militia."

The correct phrase is, "has some reasonable relationship to the preservation or efficiency of a well regulated militia".

It's not up to me to say. But I'd say a sawed-off shotgun would qualify -- it's not a militia-type weapon.

The trench gun in WWI was 20" and had a bayonet lug. That certainly qualifies.

862 posted on 03/10/2007 2:38:47 PM PST by robertpaulsen
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To: King Prout

"great cause for celebration."

I've never been much of a fan of the "take 'em to court" strategy. Given the decisions we've seen out of the courts in the last 30-40 years, I'm concerned about the risk of losing if we *do* actually end up with a case in front of the Supreme Court.

I'm in the minority opinion on this, but I think the SCOTUS has done us something of a favor by refusing to hear 2nd Amendment cases. Why do we want to risk losing in the courts when we're already winning in the legislatures?

I think that this case has a chance of making it to the SCOTUS. If so, I hope I'm proven wrong in my concerns. In the mean time, it will be fun to watch the gungrabbing socialists in dc wail and gnash their teeth.


863 posted on 03/10/2007 2:42:03 PM PST by RKBA Democrat (Lord Jesus Christ, Son of God, have mercy on me, a sinner!)
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To: Sender

"Thanks for being who you are, but still, I find the Democratic party utterly repulsive. Not that the current Republicans are much better, mind you."

Oh, I find socialism repulsive as well. But it's a lot more fun to be a conservative amongst Democrats than it is to be a conservative amongst Republicans. And frankly, it has at least the potential to be a lot more effective.

Preaching the choir is comfortable, but it doesn't accomplish much.


864 posted on 03/10/2007 2:52:44 PM PST by RKBA Democrat (Lord Jesus Christ, Son of God, have mercy on me, a sinner!)
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To: epow

"Announced presidential candidate NM Governor Richardson is pro-gun rights. As governor of NM he has to be pro-gun or face the NM voters with a big strike against him."

That's the nature of populist politics. In most times, a Democrat has to tack toward the right on various issues in order to be elected.

Unfortunately, I think that right now and for the next few years we're living in a period that will prove to be the exception. A radical leftist can and probably will be elected in 2008. That's not a reflection of a sea change in the underlying political philosophy of the public, just the result of GOP incompetence and the unwillingness of most conservatives to play pragmatic politics with regard to the two major parties. They'll stick with the GOP regardless of what they do.

Conservatives are truly the battered spouses of American politics.


865 posted on 03/10/2007 3:06:49 PM PST by RKBA Democrat (Lord Jesus Christ, Son of God, have mercy on me, a sinner!)
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To: Yo-Yo
The 1st amendment protects free speech, but there are limits to that right, including the infamous shouting 'fire' in a crowded building,

But you can shout fire in a crowded theater, if there is a fire. The government cannot tape your mouth shut because you might shout fire when there is no fire, which would be analogous to gun control, which bans keeping and bearing guns because of what you might do with them.

In both cases they seek to prevent harm, but end up preventing people from doing good. (Although many gun controllers don't think defending yourself is a "Good Thing", they'd rather you just give up your stuff, and possibly your life, to the freelance socialists)

866 posted on 03/10/2007 3:19:45 PM PST by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: robertpaulsen
The correct phrase is, "has some reasonable relationship to the preservation or efficiency of a well regulated militia".

According to who? I don't find that in the text. All my copy says about possessing arms is "the right of the people...shall not be infringed." I defined terms in my last post. Do you disagree with the plain English definitions? The trench gun in WWI was 20" and had a bayonet lug. That certainly qualifies.

Hmmm. But if you saw 3" off that trench gun, it no longer is? How about modern shotguns used by the military that lack the bayonet lug, they don't qualify? One shotgun is and another isn't based on functionally insignificant differences? Is that from the Brady website or did your boss tell you that?

Oh, your last question 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?, I reject the premise as I explained in my last post.Except to say the one in the best position to make that determination is the one who has to buy it, provide ammo for it and become proficient with it.

867 posted on 03/10/2007 3:21:08 PM PST by MileHi ( "It's coming down to patriots vs the politicians." - ovrtaxt)
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To: smoketree
smoketree wrote:
"-- 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. --"


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



Yep, that's roughly what the crackpot site linked below would like to have you believe:


http://www.usconstitution.net/consttop_bor.html

This site is becoming notorious on the web because of it's PC, almost socialistic 'interpretation' of our Constitution.

I once took issue with the site owner about his Brady type views on gun control, -- posted one of his articles, -- and invited him to defend his lies on FR's forum.
-- He showed up for a few posts, couldn't cut it, and slipped away with his tail tween his legs.
868 posted on 03/10/2007 3:38:13 PM PST by tpaine (" My most important function on the Supreme Court is to tell the majority to take a walk." -Scalia)
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To: Domandred
How is this ruling going to effect any process on HR1022 and other federal level legislation?

Thats a good question. If the Supreme Court were to uphold this ruling, then 1022 would likely be declared unconstitutional by any federal court which heard a challenge to it, which won't stop the DemonRats from passing it of course.

But as long as the decision only applies to the DC circuit, then a challenge to the law would probably be made there, but would that mean that the law was only null and void there? I would think so, since that is the case in other circuits where federal laws have been declared unconstitutional, but where the Supreme Court has neither upheld nor reversed those rulings.

869 posted on 03/10/2007 3:39:08 PM PST by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: epow
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.

Good point. Rudy's apologists will cheer his dishonesty on.

870 posted on 03/10/2007 3:43:39 PM PST by Mojave
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To: Pharmboy
They were referring to a SCOTUS decision in which RB Ginsberg agreed with Scalia and 2 others.

Still waiting for the quote.

[crickets]

871 posted on 03/10/2007 3:45:41 PM PST by Mojave
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To: green iguana
If it's appealed and heard 'en banc' that means that all of the judges of the DC Circuit (minus the 3 who's ruling is being appealed) will hear the case.

That would not be an appeal, just a en banc hearing.

I don't think the judges who comprised the original panel are generally excluded from the en banc hearing, but I'm not real certain of that The district will likely ask for one, if they haven't already. The circuit court might deny that request, leaving the District's only choice, unless they want to defy the courts, to be to appeal to the Supreme Court. Again the Supreme Court can deny the appeal, in which case the ruling stands, but only applies in the DC circuit. If they hear the case and uphold the ruling, then it applies to the whole country, and we win a big battle bu the war to defend the second amendment will go on.

If the Supremes reverse, the second amendment is a dead letter, and we might as well get it on now, not later when we are disarmed, which with demonrats in charge of Congress will happen sooner rather than later.

872 posted on 03/10/2007 3:53:36 PM PST by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: robertpaulsen
But I'd say a sawed-off shotgun would qualify -- it's not a militia-type weapon.

This is why you are a Brady Troll. The AA-12 and 16" "Master Key" are both in current military use. You say you are for RKBA, but then do everything you can to argue against it.

You might want to keep your fingers off the keyboard if you aren't going to do any research at all...

873 posted on 03/10/2007 3:55:13 PM PST by Dead Corpse (What would a free man do?)
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To: Dead Corpse
Check this site out.. 'Steve Mount' the guy that writes this trash about our Constitution, has some very 'familiar' ideas..



Constitutional Topic: The Second Amendment - The U.S. Constitution Online - USConstitution.net
Address:http://www.usconstitution.net/consttop_2nd.html
874 posted on 03/10/2007 4:03:18 PM PST by tpaine (" My most important function on the Supreme Court is to tell the majority to take a walk." -Scalia)
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To: RKBA Democrat

if nothing else, this ruling should flush the grabbers out of their camouflageing rhetoric and expose them undeniably.


875 posted on 03/10/2007 4:07:03 PM PST by King Prout (many complain I am overly literal... this would not be a problem if fewer people were under-precise)
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To: King Prout
if nothing else, this ruling should flush the grabbers out of their camouflageing rhetoric and expose them undeniably.

It's sure working that way here & now.

876 posted on 03/10/2007 4:15:43 PM PST by tpaine (" My most important function on the Supreme Court is to tell the majority to take a walk." -Scalia)
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To: robertpaulsen

robertpaulsen:

Your trolling is spoiling a good thread on an important issue. Go back to USENET!

And others: PLEASE STOP FEEDING THE TROLL!


877 posted on 03/10/2007 4:19:59 PM PST by Atlas Sneezed (Your FRiendly FReeper Patent Attorney)
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To: PurpleMan
"Calling Carl Rowan; Mr. Rowan? It's ok now."

By coincidence, I was in Washington when that incident occurred.

The newspapers were full of it for about 5 minutes, and then it seemed to me that the complete hypocrisy was ignored by the media.

Nice of you to bring it up again here. ;D

878 posted on 03/10/2007 4:23:46 PM PST by Radix (Money is speech!)
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To: robertpaulsen
The D.C. Court of Appeals is the equivalent of a state supreme court.

It's a bit more than that. First of all it's a federal court. Second it's on the same level as the other numbered circuit courts of appeal, where it is often considered "First among equals".

Because this is a DC law that is being challenged, it just means that it's federal case from the beginning, since Congress has exclusive legislative jurisdiction over the district, even if they delegated some of that to the DC city council. That means that it's a clear cut case of what the second amendment means, with no intervening question of whether it applies to state government infringements.

879 posted on 03/10/2007 4:51:14 PM PST by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: El Gato

Missed that part. Sorry.
Any bets on what the Supremes will do?


880 posted on 03/10/2007 4:54:53 PM PST by Dick Bachert
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