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
Because by defining a broad right, the feds could be assured the narrower goal could be achieved. This court was very clear about the broad/narrow contrast, and its usefulness in protecting rights to assure smaller benefits.
In contrast: if the feds could disarm the populace short of their actual participation in an active militia (another issue clearly addressed in the verdict, which apparently you missed), then when need arose to call up the militia there would then be no assurance that enough respondents would actually have arms. As it is now, and as the Founding Fathers intended, calling out the militia would bring more weapons than needed and thus be immediately ready to perform; per your interpretation, calling out the militia would result in an awful lot of people waiting for a buearocracy (sp?) to find, deliver, and even order/manufacture weapons - and that at a time when every delay threatens the security of a free state.
So what? So is the M79 and the M249 SAW. What the hell do they have to do with a sawed-off shotgun?
Gun ownership is indeed a right - but it is also a grand responsibility. With responsibility comes the interests of society to ensure that guns are used safely and are used by those with proper training and licensing. If we can agree on this simple premise, it should not be too difficult to work out the details and find a proper compromise.
Whoever wrote that is either a dangerous, conscious enemy of our liberties or is completely ignorant of the history of "reasonable" restrictions on the people's right to arms. Practically every nation in western Europe now has severe restrictions on gun ownership and/or total bans of all guns except for a few specialized types that are only suitable for hunting or formal target shooting. Most of those same nations had few or no restrictions on ownership or possession of guns at the beginning of the 20th century, but after the imposition of "reasonable" gun laws on the common people became acceptable the definition of the term "reasonable" began to change radically. The American gun owning community has been pointing out for the last 75 years or more those examples of how the devious, deceptive anti-gun faction operates, yet the yo-yo who wrote the article at your linked site still expects us to let down our guard and tolerate "reasonable" gun control laws without endangering our RKBA.
To quote Bugs Bunny, "what a maroon"! I don't believe the millions of gun owners in America will tolerate any further gungrabber incursions into our 2nd Amendment rights without fomenting a major league political meltdown of the party or faction of a party that attempts to do that. I think that the majority of gun owners who care about the RKBA are now sufficiently aware of the treacherous and lying tactics of our enemies that they won't be nearly as willing to tolerate their assaults on the 2nd Amendment without fighting back harder and with more determination than the antis can handle. Or at least that's my hope and prayer for the survival of the RKBA for my kids' sake.
Lightweight.
Thanks, but should be sufficient for my needs. And thanks for making them available.
I omit the tenth amendment from what? Can you be just a little more specific?
...of which were seriously considered by this court, and found inadequate, misguided, or just plain wrong.
You're really showing that you didn't read the verdict.
I'll note that.
I'll also note that you promptly didn't just two posts later.
Remember that the complete phrase is...
In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.The evidence was "absent" because it was never presented. Only the Federal Government's case was presented before the Court. Miller had fled (or died by some reports) before the case was heard. His side wasn't represented. Had Miller's attorneys been present, they may have shown that a sawed-off shotgun is indeed a useful militia weapon.
It seems to me that the Miller court was thinking along those lines.
"But I think that theory is inconsistent with the intent of Madison's proposed amendment which was approved by Congress and and ratified by the states."
Not necessarily. Keep in mind the second amendment only applies to the federal government and concerns the preservation of the state militia. It says that the federal government cannot infringe on its formation.
As far as Madison and Tenche Coxe is concerned, their individual RKBA was protected by their state. I doubt either man would turn over the protection of their individual right to the newly formed federal government.
"Since Madison made no secret of the amendment's intent it must have been known to the members of Congress who ratified the amendment, which indicates their intent as well."
I really don't think there was a whole lot of enthusiam for carte blanche gun ownership. I recall Jefferson's proposal to the Virginia legislature in 1776 when they were writing the Virginia State Constitution. He wanted, "No free men shall ever be debarred the use of arms."
It was rejected. Instead, the Virginia legislature opted for:
"SEC. 13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power."
A little more wordy than Jefferson's suggestion.
I'm not going to play your circle games.
If you don't know your own position I am not going to remember it for you.
Go back and read what you have said yourself.
No, thet remanded because the decision was "vague" as to how the statute violated the 2A Had Miller been present to argue, they may well have upheld the lower court.
Let's get back to, had Miller argued, describe a weapon that is NOT a suitable militia weapon. So far, you cut on cosmetic issues. I reject that. Are you going to stand on a 17" shotgun being less suitable than a 20" shotgun?
Since you side generally with the crowd who now pushes a "sporting purpose" test these days, this should be good.
Really? So what is the proscribed militia weapon? What would they decide that on? Don't say musket, they are no longer in "common use".
The AA-12 is a bullpup design used for building clear. The "Master Key' is used as an underslung 12ga attachment for the M-16 platform. Both are illegal for civilians to own despite there being a demonstrated "militia purpose" and even a "sporting purpose" for 3-gun matches.
Basically, your statement of "it's not a militia-type weapon" was your typical dodge on the issue.
Any weapon is a militia weapon. This ruling points out that the Right to Keep and Bear Arms isn't limited to a militia purpose nor a sporting one.
You still haven't read the whole thing... have you...
No problem. Pick 'em up... pass 'em on. ;-)
Miller was dead, as such, though he was able to vote in Illinois, he couldn't appear in court.
To keep and bear their private arms as part of a Militia. One way to read it.
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