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
Why didn't they just write the 2d as the first; congress shall make no law restricting the ownership of firearms. That would leave the states free to restrict at will.
But they didn't.
The right of the people to keep and bear arms, SHALL NOT be infringed, is pretty clear as to who it pertains to and what shall not be done by any governing body.
Poor Bobby... Still can't get it right...
That is not one way to read it. You cannot just add whatever words you feel like, or omit as you feel.
Do you honestly think that after throwing off the most powerful army in the world with great aid of citizen soldiers they would turn around and bind those soldiers to a tyrannical government again?
It's a declaratory statement. As it notes in the Preamble. Every gun law out there not directly related to malicious harm done with a firearm is on its face unConstitutional and should be stricken from the books.
Totally agreed.
No, you keep that in mind. That is your fatal flaw. There is no such language in 2A. That is why your whole history on this forum is wrong.
In a state? No. I don't think the thought ever occurred to them.
"Your statement falls back on Barron v. Baltimore, which in 1833 decided that the bill of rights applies only to the federal government."
I think that was the first case, yes. The court only referenced the Takings Clause of the 5th amendment, not the entire BOR.
"Article VI of the constitution is clear"
Uh-huh. And for the next 150 years, every single court ignored it? C'mon. Read the Preamble to the Bill of Rights. It says right in it that the amendments are to apply to the federal government only.
"-- With the historical context set above, a look at the current interpretations of the 2nd Amendment are appropriate.
These interpretations tend to lean in one of two ways. The first is that the amendment was meant to ensure that individuals have the absolute right to own firearms; the second is that the amendment was meant to ensure that States could form, arm, and maintain their own militias.
Either way, it is a bar to federal action only, because the 2nd Amendment has not been incorporated by the Supreme Court to apply to the states.
This means that within its own constitution, a state may be as restrictive or unrestrictive as it wishes to be in the regulation of firearms; likewise, private rules and regulations may prohibit or encourage firearms. For example, if a housing association wishes to bar any firearm from being held within its borders, it is free to do so. --"
Smoketree:
Why didn't they just write the 2d as the first; congress shall make no law restricting the ownership of firearms. That would leave the states free to restrict at will.
But they didn't.
The right of the people to keep and bear arms, SHALL NOT be infringed, is pretty clear as to who it pertains to and what shall not be done by any governing body.
Incredible isn't it, -- that anyone would tout the man above as an expert, -- a man that thinks a homeowners association can prohibit firearms.
And the constitution and BOR are the SUPREME LAW OF THE LAND.
But of course in order to arrive at your position you have to omit the supremacy clause.
LMAO!!! So the only 2A contestant in the history of SCOTUS was a good demonrat voter?
Um, yes. As long as you inset "as part of a Militia", which is nowhere in the quote... Get it???
LMAO!!! So the only 2A contestant in the history of SCOTUS was a good demonrat voter?
Right.
Makes perfect sense now doesn't it? :-)
Could be part of the new age think.
If you dream of something and think about it long enough it will happen. The rest of the world notwithstanding.
We are in the age of narcissism where people can not only create their own reality but believe they can alter the reality of others on a whim and if enough narcisists agree then it must be so for everyone else.
Case in point is all the enviros not allowing drilling for our own oil making us dependent on hostile nations for our energy while giving them billions of our dollars to use against us.
They selfishly want to preserve what they want and everyone else must follow no matter the cost.
That is narcisism
Odd that they only did this with the second amendment, huh?
They didn't do that for religion. Or free speech. Or a free press. Or freedom of assembly. The right to petition. The right to a jury trial. The right to be free from unreasonable searches.
They didn't want to achieve those goals?
"then when need arose to call up the militia there would then be no assurance that enough respondents would actually have arms."
The Militia didn't show up with arms when called to the War of 1812 -- and it wasn't because the feds disarmed them.
Well said.
Sure they did. But due to a lack of enterprise for the war and inept leadership in the active military, it didn't work very well. You can't rule over militia like British Lords and expect them to fight for you.
Read a book will you?
Yep. Now I really like this Miller guy. Not only did he thumb his nose at the Feds while he was alive, he did it twice after he was dead!! LOL!
... which is why CCW is the law of the land in federal buildings, national parks, post offices, commercial airliners under the purview of the TSA, and everywhere around Washington DC ...
Correct.
Why was the U.S. Supreme Court interested in "some reasonable relationship to the preservation or efficiency of a well regulated militia"?
"they may have shown that a sawed-off shotgun is indeed a useful militia weapon."
Perhaps they could have. Who were Miller's attorneys going to use to testify in court as to whether or not a weapon was suitable for a state's Militia?
Since this decision affects a state Militia, shouldn't each individual state be the one to decide which weapons their Militia will use? Shouldn't the state be testifying? Aren't these the weapons which the federal government "shall not infringe"?
What if Mr. Miller's weapon didn't qualify as a Militia-type weapon? What would have happened?
But you can't be bothered to answer it? OK. I understand.
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