Posted on 03/28/2010 6:30:57 AM PDT by marktwain
A federal judge in Washington, applying the Supreme Court’s 2008 decision creating a constitutional right to have a gun, ruled on Friday that three new gun control restrictions in the Nation’s capital city survive a Second Amendment challenge. In the ruling by U.S. District Judge Ricardo M. Urbina, the District of Columbia government’s laws requiring that guns be registered and banning assault weapons and large-capacity bullet-feeding devices are valid. The case is Heller, et al., v. District of Columbia (District Court docket 08-1289); the opinion can be found here. (The lead individual in the case, government security guard Dick Anthony Heller, is the same District resident who won the Supreme Court case with the same title in 2008.)
Such gun control laws, the judge ruled, are to be subjected to constitutional analysis using an “intermediate” level of review — that is, a challenged law will be upheld if it is “substantially related to an important governmental interest.” Courts around the country have differed on what level of review should apply to gun regulation, and that issue thus is a likely one for future Supreme Court analysis. The Justices did not lay down a standard in 2008, other than to say it would take more than simple “reasonable” justification to satisfy the Second Amendment.
The Supreme Court two years ago struck down a District government ban on handguns and a separate requirement that guns in the home be kept locked or disassembled. In doing so, the Court for the first time read the Second Amendment as protecting an individual’s personal right to have a gun for private use, at least for immediate self-defense in the home. The Court indicated at the time, however, that some forms of gun regulation — not spelled out in full — might still be valid under that Amendment. The District government followed up the ruling with City Council adoption of new restrictions that officials thought the Heller decision would allow. On Friday, Judge Urbina agreed.
In deciding how to weigh challenges in the new District laws, the judge noted that the Supreme Court had not placed gun rights in the category that gets the greatest constitutional protection — that is, rights that are deemed to be “fundamental.” The judge remarked: “If the Supreme Court had wanted to declare the Second Amendment a fundamental right, it would have done so explicitly.” Moreover, he added, declaring gun rights to be fundamental could not be squared with the Supreme Court’s remarks that some forms of regulation would remain valid.
Following are the three District laws, described in summary, and Judge Urbina’s rulings on them:
First, gun registration.
The new District law requires that all guns be registered. The person seeking to do so must submit fingerprints and two photographs, show knowledge of local gun laws, have visual capacity sufficient to get a vehicle driver’s license, prove completion of a gun-use or safety course, show how the gun will be used and where it will be kept, and notify District police if the gun is stolen, transferred, sold, lost or destroyed. For pistols, each weapon must be submitted for a ballistic ID test, for which a fee is attached, and no more than one pistol a month may be registered. Registration lasts for three years, but can be renewed.
The judge said that these regulations do implicate the Second Amendment right to defend one’s self in the home, but that they are justified as ways for local officials to monitor gun use, track guns used in crimes, and allow prosecution for failing to register. Those goals of public safety, the opinion said, will be served by the registration obligations. “Public safety is a quintessential matter of public regulation,” Urbina wrote.
Second, assault weapon ban.
The new law provides a list of what it considers to be assault weapons, including pistols, rifles and shotguns, or guns that have military-style features such as use of a magazine that can be detached.
The judge concluded that these weapons are not in common use, are not possessed by law-abiding citizens as a general rule, and are dangerous. Thus, the judge ruled, they are outside the Second Amendment’s protection. Thus, Urbina said, there was no need to weigh their constitutionality. If intermediate scrutiny were applied, however, the judge said the ban would satisfy that standard because the ban is keyed to public safety.
Third, large capacity magazines ban.
The new law flatly bans a magazine, belt, drum, feed strip, or similar device that can accept more than 10 bullets.
Just as with the assault weapon ban, Judge Urbina ruled that these restrictions are outside the scope of the Second Amendment but, in any event, would satisfy intermediate scrutiny for public safety reasons
Judge Urbina went on to reject one added challenge to the new local laws: a claim that, because the restrictions go further than those that have been upheld elsewhere, they go beyond the powers of the District’s local government.
Technically, the judge decided the challenge by ruling on competing motions for a ruling without a full trial — that is, summary judgment — because the facts were not in dispute. Joining Dick Anthony Heller in the challenge were three other District residents, Absalom Jordan, William Carter and Mark Snyder.
The challengers have the option of appealing the ruling to the D.C. Circuit Court and eventually to the Supreme Court. One or both of those maneuvers seems likely, given the breadth of the new restrictions and the fervor of the challengers.
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I maintained right after the Heller decision that the Court did a better job than most people were recognizing.
Here is an excerpt from the decision:
"By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122–134. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U. S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen."
The Supreme Court Justices are not stupid people. They don't use a key word like "fundamental" while referring to a right of the people by accident.
And it would certainly be nonsense to claim that the Second Amendment somehow transformed a fundamental right into something that was less than fundamental.
Urbina was very wrong in his decision.
Sure he is wrong but it will cost big bucks and a lot of time to prove it. If you read the correspondence from the founders there isn’t any doubt what they meant by the 2nd amendment. It shouldn’t take a process by SCOTUS to make the meaning clear in the first place, but when they make a decision they should engrave it in granite!
I share your frustration with the process. But I think that you would take the opposite tack if the decision had gone against us. Then, I think, you would support having the Court make the narrowest possible ruling given the facts of the case, and leave it to later Courts to expand as necessary for the newer cases.
From an historical perspective the combination of the Heller case and the McDonald case is about as fast as I could possibly imagine this process going. If not for the possibility of Kennedy continuing to support the right to keep and bear arms, I would be in favor of the Supreme Court doing nothing. It's not yet bad enough to kill a million Americans in a civil war. At least not over gun rights.
I believe this falls directly in line with what I said after reading Heller. Basically that the 2nd amendment is a right recognised by the Constitution, but it doesn’t really mean anything because the government can do whatever the hell it likes. We’ll see if the supreme court will slap them down again, orif the Consitution actually means anything.
Apparently they have not gotten the idea...
And there are not enough people in D.C. to call their bluff (BS)...
It is apparent as well, that a Supreme Court ruling falls on deaf ears in D.C.
So the peoples voice in unheard, The inalienable, moral, and Constitutional right to keep and bear arms is apparently not recognized by a “faction” of people who do not respect, nor is it fully understood by those that should understand it, and therefore leave it alone...
Seems to me it needs to now be explained in a more direct manner, now that the voice of the people is being ignored...
I would not say it is a fundamental right...
A fundamental right, by definition, would mean it is open for interpretation...(i.e.: elected government)
What the Second Amendment right really is is an “inalienable” right, meaning it is a “moral” right that is afforded by an authority higher than ANY government instituted among men...
One that is simply a right that is not open for interpretation, it is one that needs to be accepted by everyone, regardless if they choose to exercise this right, or not...
Fundamental, to me, means vital to existence, like air, food and water!
Very true...But the Second Amendment being “vital” to you, it is not to others, that (they) obviously do not believe you and I should be afforded this right...
So you and I, and many others who understand the issue, it is also bolstered (supported) by the moral and inheirancy of the authority that was recognized by a virtuous group of men who penned it...
Look at it this way, it is an issue that needs to be understood (or not), but regardless, it is one that needs to be left alone for free men and women to exercise at their discretion...
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