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
You did not. Not even close.
Article IV, Section 2 was written and ratified before the BOR was even added to the constitution. How could it refer to something that wasn't there?
"What evidence do you have that says otherwise?"
The Slaughterhouse Cases where the privileges and immunities of "citizens of the United States" were defined. I already posted that to you.
150 years of court rulings saying that the BOR only applied to the federal government.
I KNOW short barreled shotguns were used by the military. There is no need to convince me. I concede the fact that short barreled shotguns have been, and are still being used, by the military.
Now, are we both in agreement? Have I been clear enough, or do I need to say more?
The argument concerns shotguns WITH BARRELS LESS THAN 18". Got that? Please restrict your arguments to that category of weapons.
The Model 97? 18". Doesn't count. Forget about it. The Model 1897 (which was the one used by the military in WWI)? 20". Doesn't count. Forget about it.
If, in the Civil war or the Indian wars some guy went into the barn, dusted off an old shotgun with a short barrel and used it, that doesn't mean the weapon bears a reasonable relationship to a militia. Give that argument a rest already.
That's not what the Miller court asked! I am getting really PO'd with people rephrasing the argument, yourself included.
The court asked if the weapon bore some reasonable relationship to the preservation or efficiency of a well regulated militia -- NOT if it had "some sort of military use".
At the time of this Supreme Court inquiry, WWII was years away. Why are you even bringing it up? Cases was years away. Why bring it up?
At the time of Miller, WWI was concluded. The military ordered and used tens of thousands of "trench guns" for the military. They were 20".
Im my opinion, Mr. Miller's sawed-off shotgun would NOT have qualifird.
Lastly, let's say this military historian/officer testified and said, for sake of argument, that a shotgun less than 18" was not suitable. You realize, therefore, that Congress could then prohibit such a weapon (no second amendment protection!) meaning that no state militia in the United States would be able to use it?
One military historian/officer making that decision for militias acrosss the United States? I don't think so.
State-appointed officers from the state's organized militia could be called to testify whether the weapon was suitable for their state militia. Do you need standing to testify?
That's what we're talking about, you know. Pay attention.
"Mr. Miller had standing to present evidence that his shotgun was a militia-type weapon"
Whatever he says means that the way it is? Golly gosh, I wonder if he'll say his weapon was a militia-type weapon? Gee, what do you think?
Mr. Miller defines for his state what is a militia weapon and what isn't? He makes that decision for the state militia?
Hell, as far as we know, he wasn't even a militia member! Yet he tells the lower court and then the U.S. Supreme Court which weapons are protected from infringement by the second amendment.
You stickin' with that story?
Does that mean the weapon bears some reasonable relationship to the preservation or efficiency of a well regulated militia? Do you expect me to believe that a weapon used for riot control is an ideal weapon for combat?
I mean, why else mention that Mossberg sells a lot of the 14" ones to police & military?
That makes sense.
It's the Right to keep and bear Arms. Not the "Right to keep and bear only those arms on the approved for militia use list".
The prosecutor then appealed that decision to the U.S. Supreme Court, and the USSC reversed the appellate court and remanded the case back to them to determine if the weapon bore a reasonable relationship to a militia.
The U.S. Supreme Court was saying, in effect, that the appellate court cannot say the NFA violated the second amendment unless they somehow determine that the weapon was a militia-type weapon.
This may have surprised the appellate court. They may have thought ALL weapons were protected by the second amendment, so they never even bothered to determine whether Miller's weapon was suitable for a militia.
Anyways, by this time Miller was dead and his partner pled guilty. That was the end of it.
How many of those million were used by our miltary during WWII? How many of those are currently being used by our military?
Yet you consider those weapons to bear some reasonable relationship to the preservation or efficiency of a well regulated militia? Do you know the difference between that and "this thing can kill people"?
I honestly don't think you do.
Yeeeeeesss. And your point?
If the second amendment isn't referring to state militias, that to what militias is it referring?
... and "a well regulated militia and "being necessary" and "the security of a free state". Let's not forget those, shall we? I know you'd love to.
"Congress is therein forbidden from limiting terms."
Looking at the number of posts I've made on this thread, I don't have the time to respond ... especially to someone who wouldn't make the time to respond to me.
I'm funny that way.
That _you_ don't see the suitability should not mean that _I_ can't have one that I do see suitable.
Which leads us to the more telling questions (which I expect you will avoid):
should not the burden of proof be on those claiming something is _not_ suitable? What purpose is served by denying individuals room for choice in innovation, availability, and applicability to particular situations? By what sanity should the standard be "presumed unsuitable until proven otherwise"? Would you truly reject someone who showed up for service with something only marginally different from the "standard"? Offered a barrel 4" shorter than normal, would you rather go without?
You have long and verbosely derided the "suitability" of a sub-18" barrel - based on the notion that such was not in common use some 60+ years ago in a very different war. Why do you use as your standards that which was used decades, even centuries, ago - rather than seeking out what modern technology can improve on? Muskets were clearly "suitable" 200+ years ago, but are laughably inappropriate for today. The 20" "trench broom" from WWII may still be suitable, but comparing power tolerance and ballistics would likely favor today's 14" "cruiser model".
So long as Congress and the states neglect their duties to "train and equip the militia", or even indicate what is considered "suitable", one must presume that each is free to arm himself as he sees fit, and is up to detractors to prove why X is not "suitable". If Liberator pistols were "suitable" enough to make a million of and ship for combat, then surely my 14" "master key" and 11.5" AR15 certainly have a place (without needing _your_ say-so).
Then why didn't the U.S. Supreme Court conclude that in Miller?
Because you're lying.
The same militia which POTUS can call up.
70 years after Miller. What's the relevence? I warned you about this.
Shorter barrels? Shorter than what? I also warned you about this.
See ya on the next thread.
Dunno. Go ask them.
As for Parker, they turn that reasoning back around to the right course. Of course, you are ignoring that little bit there aren't you?
Because you're lying.
No. You are projecting. There's a difference.
I hope that is simple enough for you to comprehend, but I'm not holding my breath on that.
I didn't say it referred to the BOR. I said it encompassed the "rights recognized in the BOR".
You said earlier that Article IV essentially says that a state cannot treat a citizen of another state differently than their own.
How can that be if privileges and immunities do not encompass rights?