DC Circuit strikes down DC gun law

How Appealing Blog ^ | 03/08/2007 | Howard Bashman

[cryptical]

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

[robertpaulsen]

I just don't have the time to answer your question. I thought you understood that.

[smoketree]

You mean you can't answer because you have no answer.

Where are these so called state militia's?????????????
If you can't back up what you say then you should stop saying them.

[smoketree]

No you don't have time to remember the nonsense you post, that is the problem.

[robertpaulsen]

"Do you believe the phrase "Privileges and Immunities", as it applies to the national government, should include all of the BOR?"

Of course not. And neither did the Founders. They never would have stood for it.

Go pick on your buddy -- he thinks Article VI applies the BOR to the states. Go convince him that Article IV applies the BOR to the states.

The blind leading the blind.

[robertpaulsen]

"And since the power to coin money and to establish post offices IS, in fact, delegated to the (Congress of the) United States, I guess that shoots you right down, doesn't it?"

Nope. Article VI says the constitution is the law of the land, meaning it's the law of the states also. Correct?

Which means the states can print money. It's right there in the constitution. You even pointed it out. If it's in the constitution, it applies to the states because of the supremacy clause.

Here's proof. The first amendment says Congress shall make no law ...(just like is says Congress has the power to coin money). Yet the first amendment applies to the states, doesn't it? Same thing with printing money. Article VI says so.

[smoketree]

WOW!!!!!!!
You are out there.
Hillarious the stuff you come with.

[smoketree]

Say do have any recommendations on what kind of drugs to take to escape from reality because you sure have.

[robertpaulsen]

"Sure, if he were my expert witness"

Who's "my"? The prosecutor? The defense atorney? The defendant?

And that testimony would then apply to the militia of all 48 states?

[smoketree]

I think the phrase that applies to you is; "stuck on stupid".

[tpaine]

A sawed off 12ga. is absolutely the ideal weapon for close-in work, bar none. It becomes useless after more than 15 yards or so, because the shot spreads too much,

Years ago I sawed off a beat up old Sears boxlock dbl to 26" and patterned it at 40 yds with #4 buck.. Almost all pellets were within a 5' circle.

I then cut it down to 22", and it put nearly all of its 21 pellets in an approx 6' circle.

Finally, cut down to a bit over 18" the gun still put [consistently] 90% of its 21 pellet #4 buck load into a 72" circle at 40 yards.
-- A standing man at the center of that circle would get hit by at least 4 to 6 .24 caliber pellets, still moving at 800FPS or so..

Never sell buckshot 'short', -- it's still lethal at 40 yards.

[Ken H]

I've cited evidence that "privileges and immunities" was understood by the Founders to encompass the rights recognized in the BOR. What evidence do you have that says otherwise?

[tpaine]

Gotta love FR's masochists though.

[smoketree]

Yeah. Doesn't look too good for the future of man does it.

[smoketree]

Seems paulsen is the product of public schools.

[El Gato]

The lower court never ruled that Miller's weapon was or was not suitable for militia use. They said the NFA violated the second amendment. They were no more specific than that.

I know, but the Supreme Court opinion indicated that they implicitly did, when their opinion stated:

In the absence of any evidence tending to show that possession or 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, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

...

We are unable to accept the conclusion of the court below and the challenged judgment must be reversed. The cause will be remanded for further proceedings.

Since there were no "further proceedings" we can never know what might have occurred at them. But surely Miller's lawyer, had Miller still been among the living, would have brought in evidence that short barreled shotguns, even if not the exact type used by Miller, had indeed been at one time "part of the ordinary military", and not so long before then either.

In the civil war, and Indian wars after and before, the shotgun, usually a double barrel, was a common weapon of calvary troops.

BTW, the Winchester model 97 had an 18" barrel not a 20". (see also this article from Global Security But the reason it was that long was to give it a respectable magazine capacity, since their would be no point the barrel being shorter than the magazine tube. (Some barrel length went to the bayonet attachment as well, since the base of the bayonet fits up against the end of the magazine.

[El Gato]

Who should the lower court have asked to testify on the suitability of the weapon for a state militia?

Possibly several different folks, maybe some for each side. A military historian and/or officer (who could easily be the same person) would be a good choice. The testimony would be to answer the question "had such a weapon been used in militia/military service or could it be" The question to "has it" is clearly yes, the answer to "could it" might depend on the person. If the officer was from the calvary, still using horses in 1939, and even later in some cases, including the US Army after WW-II in patrolling the inter-german and other borders in Europe, the answer quite likely would be yes. Of course the real answer was to come in just a few years, as related by the US first circuit court in Cases

the rule of the Miller case, if intended to be comprehensive and complete would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well known fact that in the so called "Commando Units" some sort of military use seems to have been found for almost any modern lethal weapon. In view of this, if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus. But to hold that the Second Amendment limits the federal government to regulations concerning only weapons which can be classed as antiques or curiosities, -almost any other might bear some reasonable relationship to the preservation or efficiency of a well regulated militia unit of the present day,-is in effect to hold that the limitation of the Second Amendment is absolute. Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon. It seems to us unlikely that the framers of the Amendment intended any such result.

But of course, that is exactly the result intended by the Framers of the Second Amendment. But the first Circut substituted its policy preferences in place of the judgement of the Supreme Court and the written words in the Constitution itself, not to mention the other writings of the Founding Fathers.

[El Gato]

You keep mentioning "the state militia". Where are these state militia's. I have never heard of one.

They still exist. The national guard, *when not called into federal service" is *part* of the state militia. Many states have other organized units, often called the "State Guard". Texas has both Army and Air State Guard units, as well as a Medical Reserve Corps and a Maritime/Naval Regiment. Their uniforms are those of the respective service, but unlike the National Guard, they say "Texas State Guard" rather than "US Army". (The Army provides the uniforms and equipment for the national guard, but not the state guard). Furthermore most states have a "reserve militia" or "unorganized militia" provision in state law. In Texas everyone, save a few public officials (and the illegals!), from 18 to 60, male and female, is a member of the "reserve militia" and is subject to call up by the Governor. That's in contrast to the federal militia which is all males 17-45 and female members of the National Guard. The federal unorganized militia, which of the members of the militia who are not members of the National Guard or the Naval Militia.

The mission of the state guard is pretty much the same as the state mission of the national guard. They also are tasked to guard and maintain the NG armories when the NG is called in to federal service.

[FrPR]

That's ME !

[steve-b]

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?

The state had no standing in this case, since the state was not being sued or prosecuted.

Mr. Miller had standing to present evidence that his shotgun was a militia-type weapon, and was therefore one of the "arms" the individual ownership of which is protected by the Second Amendment, but he didn't show up.

[steve-b]

While the 2nd Amendment does not define or limit arms

Actually, Miller concluded (correctly) that the militia clause provides guidance as to what sort of weapons constitute "arms". (The Supreme Court went astray in its specific finding of fact because the defendant failed to present the evidence that would have supported the conclusion that a sawed-off shotgun is indeed an "arm" of militia utility.)

Note that this neatly disposes of the "argument" that the militia clause must mean what the gun-grabbers want it to mean because, darnit, it has to mean something or it wouldn't be there.

[steve-b]

I'm not equivocating, I'm educating.

I salute you for your persistence, but, really, in this case it's like trying to bail out the Pacific Ocean with a teaspoon.

[ctdonath2]

Mine are 20" and 14". While there is a change in pattern size & velocity, it is not so dramatic as to warrant drawing a bright legal line between them. Mossberg sells a lot of the 14" ones to police & military.

were concealing them and using them in criminal acts

Then ban the concealment and use in criminal acts - just as the Parker verdict observed. Prohibition of mere ownership is not warranted ... especially when modern militaries have discovered that sub-18" barrels ARE particularly useful.

[steve-b]

Who should the lower court have asked to testify on the suitability of the weapon for a state militia?

The same people they ask about any other questions of fact that affect a case before them -- the expert witnesses supplied by the parties to the case. Presumably, the expert witnesses will have different takes on various points, in which case it falls to the court to decide who is more credible.

[ctdonath2]

They said the NFA violated the second amendment.

Did Miller actually reverse that? or did they merely remand the case for more evidence?

[ctdonath2]

Who should the lower court have asked to testify on the suitability

Your difficulty in answering that question belies the misguidedness thereof. The more people of your persuasion try to draw a line, the harder they find doing so.

Maybe there really isn't a line.

The Liberator pistol is, by your published reasoning, about as "unsuitable" as possible (very short smooth barrel, modest caliber, single shot, crummy quality, highly concealable, slow complicated reload, etc.) - yet a million were made in WWII precisely for "militia" (i.e.: anybody able & willing to fight in a declared war) purposes. Even a musket or sub-18" shotgun would be far preferable. Think about that: our government ordered production of a million of them specifically for our military allies.

[ctdonath2]

state militias

The 2nd doesn't say "state militias". It says "militia", and that from a federal perspective, including the President's ability to "call out" and Congress' ability to "train and equip" it.

[ctdonath2]

The 2nd doesn't say anything about "useful to" or "reasonable relationship to". It just says "arms" and "shall not be infringed". Congress is therein forbidden from limiting terms.

[ctdonath2]

Looking at the number of posts you've made on this thread, you have time.

[smoketree]

According to paulsen if the words state and militia are in the same paragraph and he needs them for his position then they are together.
There is simply no way to argue with someone like that.

[tpaine]

Another great common sense decision about bearing arms:

Restrictions cannot contravene the Constitution
Address:http://www.freerepublic.com/focus/f-news/1800547/posts

[robertpaulsen]

"I've cited evidence that "privileges and immunities" was understood by the Founders to encompass the rights recognized in the BOR."

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.

[robertpaulsen]

"would have brought in evidence that short barreled shotguns"

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.

[robertpaulsen]

"some sort of military use seems to have been found for almost any modern lethal weapon."

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.

[Dead Corpse]

Im my opinion, Mr. Miller's sawed-off shotgun would NOT have qualifird.

[robertpaulsen]

"The state had no standing in this case, since the state was not being sued or prosecuted."

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?

[robertpaulsen]

"Mossberg sells a lot of the 14" ones to police & military."

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?

[robertpaulsen]

Ah. So the states have no say in the matter. They are not allowed to testify in court as to what weapons THEY consider useful to their own state militia. Some "expert" will do that for them. He'll tell all the states what they can or cannot use to defend their state and our country.

That makes sense.

[Dead Corpse]

If you can kill someone with it, then it qualifies. Period. No judge required.

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".

[robertpaulsen]

The original court found Miller guilty. The appellate court reversed that, saying the NFA violated the second amendment (without saying why).

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.

[robertpaulsen]

"yet a million were made in WWII precisely for "militia"

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.

[robertpaulsen]

"The 2nd doesn't say "state militias". It says "militia"

Yeeeeeesss. And your point?

If the second amendment isn't referring to state militias, that to what militias is it referring?

[robertpaulsen]

"It just says "arms" and "shall not be infringed" ..."

... 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."

Wha?

[robertpaulsen]

"Looking at the number of posts you've made on this thread, you have time."

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.

[ctdonath2]

Currently, our military is doing a lot of house-to-house, indoor operations in Iraq. In such confined quarters, shorter barrels are preferred for manuverability. Facing so many locked doors, that which you deride as unsuitable is actually ideal for use as a "master key".

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).

[robertpaulsen]

"If you can kill someone with it, then it qualifies."

Then why didn't the U.S. Supreme Court conclude that in Miller?

Because you're lying.

[ctdonath2]

If the second amendment isn't referring to state militias, that to what militias is it referring?

The same militia which POTUS can call up.

[robertpaulsen]

"Currently, our military is doing a lot of house-to-house, indoor operations in Iraq. In such confined quarters, shorter barrels are preferred for manuverability. shorter barrels are preferred for manuverability."

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.

[Dead Corpse]

Then why didn't the U.S. Supreme Court conclude that in Miller?

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.

[steve-b]

When a state is party to a case, they get to hire their own expert witnesses. When a state is not a party to a case, they have no more say in it than the Man in the Moon. Look up the term "standing" in a legal dictionary sometime.

I hope that is simple enough for you to comprehend, but I'm not holding my breath on that.

[Ken H]

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?

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?