Skip to comments.DC Circuit strikes down DC gun law
Posted on 03/09/2007 8:10:02 AM PST by crypticalEdited 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
Personally, I like the way Ted Nugent deals with animal rights weenies - whenever one of them starts whining at him, he goes out and kills a deer in thier name.
The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution. Resolved by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States as amendments to the Constitution of the United States, all, or any of which articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.
Articles in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.
An erroneous position is being put forward as a 'fact': '-- Right in the Preamble to the Bill of Rights it says that the amendments are to apply to the federal government only. --'.
This is wrong, - as we can see above: "-- all, or any of which articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; --"
Sig226 points out; "-- Compare and contrast:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The fact that they ignored the very clear wording of Article VI does not change its wording. They also said that the constitution supported slavery. It did this only by mentioning how much a slave counted in the census, yet slavery went on for 70 years after the document was written
Sig, - as we see, the writers of the preamble did not 'ignore' the fact that the BOR's were to be made part of our "Law of the Land"; -- to them, once the Preamble stated the obvious, -- that the BOR's were "part of the said Constitution"; -- It was equally obvious that Article VI applied.
I wonder what Idaho's AG was doing on the amicus curiae panel which supported the D.C. appellees? Idaho has always been a gun friendly state in the past, so what's with it's AG working with the district's lawyers in federal court to help sustain the district's unconstitutional gun laws?
I know ID is being overrun by people getting out of CA before it officially becomes a province of Mexico, but I didn't realize they have already had that much of an impact on ID politics. The western and southern states have alays been the reliable stalwarts in the fight against the gungrabbers, and unless there is a good explanation for ID's AG supporting the other side it is not a good omen for the future IMHO.
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
"A well educated Electorate, being necessary to the secutity of a free State, the right of the people to keep and read Books, shall not be infringed."....somehow this would not raised such an uproar on the left(read Librarians. They would not call for banning certain books like they call for banning certain arms...yet books are responsible for quite a few deaths...Mein Kampf, Communist Manifesto,Mao's little red book.etc,etc....
...The animal rights creeps must be having conniptions over this....
The animal rights creeps and all the other lefties.
Can you imagine the second amendment a.k.a. THE RESET BUTTON ON THE CONSTITUTION is still available to the "populace" ????How will they ever be able to "Lead" us with their enlighted ideas?...for our own good, of course.
All "people"? Illegals, non-citizens, terrorists, those on parole, felons, the insane, 4-year-olds ... even Negroes? There's plenty to parse.
What does "to keep" mean? "To bear"? What are "arms"? What is "an infringement"? Plenty more to parse.
And all this is no different that what we do with any other amendment or the body of the U.S. Constitution itself. Yet you think you've discovered some massive conspiracy by "gun grabbers" because they want to parse the Holy Grail of all amendments .... "THE SECOND". (sound of angel chorus)
In the book by Hallbrook that I mentioned in #1001 he writes:
"There is a hidden history of the Second Amendment which is long overdue to be written. It is this: during the ratification period of 1787-1791, Congress and the states considered two entirely separate groups of amendments to the Constitution. The first group was a declaration of rights, in which the right of the people to keep and bear arms appeared. The second group, consisting of amendments related to the structure of government, included recognition of the power of states to maintain militias. The former became the Bill of Rights, while the latter was defeated. Somehow, through some Orwellian rewriting of history, as applied to the issues of the right of the people to keep and bear arms and the state militia power, that which was defeated has become the meaning of that which was adopted."
It looks to me like the American people have been sold a pack of lies about the authors' intentions for the BOR. But I'm not a lawyer and I don't understand all the arcane rules of interpretation they use to compound the confusion in the public's minds, so what do I know?
I said it was up to a state to make that determination and testify to that effect. You said BS.
I'm asking you a very simple question. If not the state, then who should testify in the lower court that the weapon in question bore a relationship to a militia?
The Wikipedia story is a poor summary, and doesn't include what I recall about the event.
Here's more detail:
"In 1988, Rowan shot and wounded in the wrist an intruder who had trespassed on his property in Washington and used his swimming pool. Rowan said he had fired because the youth was trying to break into his house and refused to stop when ordered to do so. He also said the pistol he used was exempt from the District's strict gun-control laws because it belonged to his older son, a former FBI agent. District officials disagreed and charged the columnist with violating those laws. A highly publicized trial ended with a hung jury." Source: "Columnist Carl Rowan Dies at 75", The Washington Post, 24 September 2000
Initial press reports (IIRC) were that the kid had actually broken the patio door window and was inside the house when Rowan came downstairs. Later I think the story came out that the kid was trying to break into the house and he kept telling him to get away or he would shoot.
Of course, given all the politics of the situation, he knew they wouldn't be able to convict him. I was surprised it even went to trial. But this didn't change any of his stance on gun control; he was a good liberal and didn't let the facts get in the way of his opinion.
And not the AR-15 semi-auto versions, either, but the selective-fire fully-automatic M-16 assault rifle.
No, I don't think the Miller court went that far. It has been read that way yes.
The court's actions hinted that if the weapon was suitable for use by the militia then the tax stamp was an infringement on the weapon. In other words, the tax stamp infringed on the ability of a state to form a Militia using this weapon OR it infringed on the ability of an individual Militia member to obtain this weapon OR it infringed on the ability of a civilian to obtain this weapon.
Or all three, I don't know. No one knows. The Miller court never said why they needed this "evidence of a relationship to a Militia".
I agree with part of what you said. The Miller court seemed to be saying that the ONLY "arms" protected by the second amendment from federal infringement are those arms that bore some reasonable relationship to a Militia! Good news? I'm not so sure.
What if some future liberal court decided that handguns, though used by the Militia officers, were not the weapon of the average Militia soldier? They could conclude that the right to keep and bear handguns was only protected for the state-appointed officers mentioned In Article I, Section 8 of the U.S. Constitution.
They wouldn't do that? Hey, who would have thought a U.S. Supreme Court would approve of McCain-Feingold? Or Abortion? Sodomy? The Kelo decision? Nude dancing and flag burning as "speech"?
Yeah, they would.
Like guns, books don't kill -- people kill.
You're misreading Article VI. It says in effect this contract (the constitution) is binding on both parties. It is the law.
It does not mean that everything IN the contract (the constitution) is binding on the states. What, states can create Post Offices and print money?
Parts of the contract (the constitution) apply to the states and parts to federal government. The Bill of Rights applied only to the federal government as I demonstrated with the Preamble.
Seems to me that these books are associated with the library, huh? I mean, why else mention a library?
The military was exempted from the tax, yes. What about the state Militia? Was a Militia member exempt when he went to purchase such a weapon? If "we the people" are the Militia, then ....
For opponents of the 2nd Amendment, (those who seek to destroy our system from within), the plain simpleness of the good ole fashioned English must be a nightmare for gun grabbers.
I see you have composed a list of those you fear, and would take away their right. I'll wager that you expect the govt to protect you from them, while I expect to have the ability to protect myself from them.
You cannot infringe on my right to keep and bear arms because of your own fears of someone possessing a gun that is on your fear list.
The responsibilty of a free society is to defend those in their community who are incapable of defending themselves. This is not accomplished by parsing gun rights. This is accomplished by having all free and capable men and women in the community possess the ability to self defend themselves as well as those in their respective communities who are incapable. Four year olds come to mind.
And the second amendment debates over "the plain simpleness of the good ole fashioned English" have been going on for how long now?
And you've been rebutted on that one so many times it isn't even humorous any more you drunken reprobate. The BoR is a list of Rights of the People. They are declaratory. Neither the State, nor the FedGov may infringe on them.
Looks like you STILL haven't read this decision. You've got your little cut-n-paste check list and are making yourself look more idiotic with every post...
For as long as nimrods like you keep trying to obfuscate "shall not be infringed" to gain power over the citizenry. Just like your buddy X42 and his trouble with defining "is".
I actually meant the first clause of the Second Amendment. I guess preamble is the wrong word.