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
"Then who would define that arm?"
An arm in this context is a weapon. A weapon is an object utilized to defend oneself on the streets of America, in our homes, and as soldiers in war. What definition are you seeking beyond a limit to arms? Should we prevent citizens from owing nukes? Is that where you are going? Ok, can you afford one? Can any of your friends afford one? And if they can, are they prepared to become radioactive and die themselves when they mis-handle it?
As a citizen of these United States, the 2nd Amendment allows me to decide and define the arm I choose to protect my family. Not the states, nor subsequent laws passed by the fed which restrict the choice of weapon.
Oh, the National Guard isn't a true militia because they have flags in their armories with yellow fringe put there by the Illuminati.
One thing that I found startling, after reading the entire decision -- all 75 pages of it, every single word -- is that the contemporaneous documents and words make it obvioust that the Second Amendment IS "about hunting" -- partially (and only partially).
The information included in the decision makes it quite clear that the founders did intent to protect a right to hunt, in addition to the primary rights (defense) protected by the Second.
The animal rights creeps must be having conniptions over this.
IANAL, but I belive that this decision (once it's fully adjudicated), can be introduced in litigation in other venues. I don't think it would carry the same weight as case law from their own jurisdiction, or, from the SCOTUS, but I believe that such things are regularly included in the arguments (i.e., thus and such a court in thus and such a jurisdiction said thus and such on a matter related to the one before this court).
Decisions from other jurisdictions are frequently cited in other jurisdictions in order to support the argument of one side or another.
How much weight they are given is another matter entirely.
If you read all 50+ pages of the "for" part of the decision, it becomes (IMO) obvious that they spent a lot of time working to create an "appeal-proof" decision. They could have made their points in a page or two and left it at that, but instead, they went to incredible effort to build an ironclad case for why they decided the way they did.
Contrast that with the 20 odd (and I do mean "odd"!) pages in the dissent, which create the impression of a panicked effort prove an obvious lie, comically reminiscent of Lou Costello's hilarious blackboard "proof" that 2+2=22.
The basis of the dissent seems to be that the Second serves only to provide the states the power to infringe the right to keep and bear arms -- but, at the same time, she makes another assertion, namely that the Bill of Rights only applies to the states (thus leaving the poor bastards living in the district without any Constitutional protections, I presume).
Can you say "mutually exclusive conditions"? I knew you could!
I caught that, too. If the black residents of DC ever figure out that this Federal Judge just made a serious argument that the 13th Amendment doesn't apply to them she's going to be in real deep kimchee.
But it would be pretty funny to watch her being ridden out of town on a rail.
If you look a the amicus curiae list, it's apparent that they had an all-star team of heavy hitters involved. (There are a few pucker-faces there too, for the other side, but they were clearly outclassed, and outnumbered.)
Alan Gura argued the cause for appellants. With him on the briefs were Robert A. Levy and Clark M. Neily, III.
Greg Abbott, Attorney General, Attorney Generals Office of State of Texas, R. Ted Cruz, Solicitor General, Troy King, Attorney General, Attorney Generals Office of State of Alabama, Mike Beebe, Attorney General, Attorney Generals Office of the State of Arkansas, John W. Suthers, Attorney General, Attorney Generals Office of the State of Colorado, Charles J. Crist, Jr., Attorney General, Attorney Generals Office of the State of Florida, Thurbert E. Baker, Attorney General, Attorney Generals Office of the State of Georgia, Michael A. Cox, Attorney General, Attorney Generals Office of the State of Michigan, Mike Hatch, Attorney General, Attorney Generals Office of the State of Minnesota, Jon Bruning, Attorney General, Attorney Generals Office of the State of Nebraska, Wayne Stenehjem, Attorney General, Attorney Generals Office of the State of North Dakota, Jim Petro, Attorney General, Attorney Generals Office of the State of Ohio, Mark L. Shurtleff, Attorney General, Attorney Generals Office of the State of Utah, and Patrick J. Crank, Attorney General, Attorney Generals Office of the State of Wyoming, were on the brief for amici curiae States of Texas, et. al. in support of appellants.
Don B. Kates and Daniel D. Polsby were on the brief for amici curiae Professors Frederick Bieber, et al. and organization amici curiae Second Amendment Foundation, et al.
Stefan Bijan Tahmassebi was on the brief for amicus curiae Congress of Racial Equality, Inc. in support of appellants seeking reversal.
Peter J. Ferrara was on the brief for amicus curiae American Civil Rights Union in support of appellants.
Robert Dowlut was on the brief for amicus curiae National Rifle Association Civil Rights Defense Fund in support of appellants seeking reversal.
Todd S. Kim, Solicitor General, Office of Attorney General for the District of Columbia, argued the cause for appellees. With him on the brief were Robert J. Spagnoletti, Attorney General, Edward E. Schwab, Deputy Solicitor General, and Lutz Alexander Prager, Assistant Attorney General.
Ernest McGill, pro se, was on the brief for amicus curiae Ernest McGill in support of appellees.
Thomas F. Reilly, Attorney General, Attorney Generals Office of Commonwealth of Massachusetts, Glenn S. Kaplan, Assistant Attorney General, Lawrence G. Walden, Attorney General, Attorney Generals Office of the State of Idaho, J. Joseph Curran, Jr., Attorney General, Attorney Generals Office of the State of Maryland, Zulima V. Farber, Attorney General, Attorney Generals Office of the State of New Jersey, were on the brief for amici curiae Commonwealth of Massachusetts, et al. in support of appellees. John Hogrogian, Attorney, Corporation Counsel's Office of City of New York, and Benna R. Solomon, Attorney, Corporation Counsel of the City of Chicago, entered appearances.
Andrew L. Frey, David M. Gossett, Danny Y. Chou, Deputy City Attorney, Office of the City Attorney of the City and County of San Francisco, and John A. Valentine, were on the brief for amici curiae The Brady Center to Prevent Gun Violence, et al. in support of appellees. Eric J. Mogilnicki entered an appearance.
They quoted Miller, too -- but, unlike pretty much every other citation I've every seen on that case, they got it right! They actually understood what that court said! The Miller decision was strongly pro-2nd, yet, it's been perveted over the years into something that allegedly endorses a position 180 degrees opposed to what it said.
WRT to things like "Assault Weapons", if Miller were to be the yardstick, the ONLY firearms that would be protected private ownership via the 2nd would be things like "Assault Weapons"! The sole criteria addressed by Miller was, "Is this firearm suitable for use by the military? If so, then a civilian's right to own it may not be infringed!"
It's truly Orwellian that the antis have managed to pervert Miller into a tool used for the exact opposite of what it actually says.
And it's truly amazing that this court was sufficiently ballsy to say what it said.
I see only two possible scenarios.
One, they are serious about restoring the 2nd to its actual purpose, or, two, they know it's a lost cause, so, "what the hell", might as well tell the truth, since it won't matter in the long run.
I guess we'll find out before too long whether or not the fix is in.
Only if they have a refrigerated lockup. He died on Sept. 23, 2000
Regarding the "skinny-dipping defense", from Wikipedia (yeah, yeah, but it seems to be lifted from established sources, and it's consistent with what I recall having read at the time of the incident):
Rowan gained public notoriety on June 14, 1988, when he shot a teenage tresspasser, Neil Smith, who was taking a dip in Rowan's swimming pool in Washington, D.C.. Rowan used an unregistered .22 LR pistol. Critics charged hypocrisy, since Rowan was a strict gun control advocate.
Now, what gets me about this whole incident is not the "merits" of the shooting, but rather, the "above the law" aspect that was enjoyed by Rowan and his son, an FBI agent, who illegally gave him the illegal gun (and that is not a redundancy).
Clearly, there's one set of rules for the "inner circle", and another set of rules for the rubes.
Somewhat tangential to the Rowan matter (tangential only because Rowan was a journalist, rather than a politician), the way Our Leaders have been getting around the DC gun ban is quite creative. They have been getting themselves sworn in as U.S. Marshalls.
This empowers them to carry everywhere, including, if I'm not mistaken, on commercial airliners.
It also -- human nature being what it is -- gives them very little motivation to come up with any kind of "national carry" law, since for them, it's moot. They already have national carry.
That's right. Your Senator, or Congressman, may also be a U.S. Marshall!
Now, the U.S. Marshalls Service is part of the Executive Branch of the federal gov't, and the Legislature is part of the Legislative Branch.
This means that these jokers are members of two branches of the federal government at the same time.
And that, I belive, is illegal.
But, when you're above the law, why worry about trifling details like that?
Especially if you favor "gay" rights and socialized medicine.
The thing is, I don't.
It's starting to look like the next election day is shaping up as a "stay home eating popcorn" day for me.
No, not quite.
It's in abeyance pending appeal.
Thats why I posed the question. Its often a considerable time between a ruling and the correction of a law.
No, actually it was only two out of the panel of three.
And they can still ask for the entire set of judges to hear it en banc. And I'd be really surprised if they didn't -- and I'd be equally suprised if this decision wasn't struck down when heard en banc, which would then mean that it might go to the SCOTUS -- but, the SCOTUS has refused to hear similar cases in the past, so I think it's a bit premature to go breaking out the champaigne.
Still, it is remarkable to see a couple of federal judges get so many things so right, and explain it, on the record, in such painstaking detail. If nothing else, it should serve as a good starting point for future challenges.
I am not advocating any illegal action.
But, discussion of what the 2nd amendment is for is lawful.
Is the 2nd amendment rights clause authorizing armed action against tyrannies of a government against its citizens.
And... is a judge or legislature outlawing or restricting the 2nd amendment one of those tyrannies?
"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."
Then I'm the first one to think of it. I must be even smarter than I thought. I amaze me.
Read the Preamble to the Bill of Rights. It says right in it that the amendments are to apply to the federal government only.
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 insure the beneficent ends of its institution
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.
They could have used the act's own words, which specifically exempted the military from the regulations about short barreled rifles and shotguns. The military can have all the short barreled shotguns it wants. Law enforcement was also exempt, and police assume a paramilitary role in times of emergency. It was illogical for the court to refuse to see that "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 . . ." when the law was written so that only military and paramilitary organizations could have them.
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.
Are you thinking of the state funded public library down on Third Street (State National Guard), or the private library I have on the shelves behind me (A citizen's safe full of guns)?
Would have. They were extensively used in WWI. Commonly known as 'trench guns'.
Those had 20" barrels, a bayonet lug, sling swivels and a barrel shroud.
I doubt Mr. Miller's gun had any of those.
And if they don't (as is the case, practically speaking), their negligence does NOT diminish the individual's right to keep and bear arms. This was plainly addressed in the DC Circuit's verdict, which obviously you still haven't read (and many people on this thread, who have, wish you would stop spouting off until you do).
Just to be nitpicky: it is legal to own, you just have to file some paperwork and pay a $200 tax. Where do I get one?
The National Guard has been deemed a "select militia" by SCOTUS - not to be confused with the general (or "unorganized" as noted by the DC Circuit's verdict which you obviously haven't read, because they clearly addressed this) militia.
There certainly is a place for the gov't to provide arms to the select militia and standing army - reasons including commonality, assurance and affordability. There is also a place for militia members outside those groups to provide their own weapons, making sure those called up can show up armed and ready immediately, as the gov't is not necessarily able to equip large numbers under difficult conditions immediately (heck, they're having trouble keeping up with weapons needs in Iraq for the select militia; if you're called up, you may need to bring your own).
If you can't articulate an answer to a reasonable and relevant question, we must assume you don't have one - especially as you spend time & effort insulting people instead.
Damn! All along I've been quoting from the 9th Circuit's 80-page opinion in Silveira v Lockyer! No wonder!
So you're saying the DC Circuit's verdict negates and replaces all previous second amendment verdicts and, like good little Nazis, we should all be quoting from it?
"Mommy! robertpaulsen's not playing fair! We're all circle-jerking about this most recent opinion and he keeps throwing cold water on us with his constant citing of the facts! Make him stop, Mommy!"
Numbnuts said that without arms there was no way for civilians to participate in militia duty. I pointed out that the National Guard manages to do it -- Guardsmen don't take their weapons home.
That's the only reason I brought up the Guard. I wasn't trying to make any other comparison to a Militia.
Ease up. Here I am trying to get past the first page of the verdict and you keep interrupting me.