Posted on 03/09/2007 8:10:02 AM PST by cryptical
Edited 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
Actually they were defined in Dred Scott, which the P&I clause of the 14th Amendment was designed to overturn, and which was about 20 years prior to The Slaughterhouse Cases
This is how Dred Scott defined them:
For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.
The Slaughterhouse Justices just decided to ignore that previous Supreme Court definition, which was the one used by both framers and opponents of the 14th amendment. The main reason those who opposed the 14th did so because it would override state laws denying those "Privileges and Immunities".
So you get to decide which weapons used by either the US military or Organized state militias and National Guard units counts as being able to "contribute.." and/or is part of the ordinary military equipment.
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
Fine, but you are wrong and I posted evidence from multiple sources, that you are wrong about the length of the barrel of the M97, the one used in WW-I, (which was the Military designation), although it was still not "under 18 inches". Winchester Model 1897s came in various barrel lenghts, just as most shotguns do today.
And what is so magic about 18 inches, except that it's the magic value the authors of the National Firearms Act chose, just like the "magic" or "evil" features that were chosen by the authoress of the '94 Assault Weapons Ban. Didn't mean squat, it was arbitrary and capricious, as well as being a violation of the second amendment, even if as you assert, that the amendment only applies to the Federal government.
Because the judge in the case implicitly took "judicial notice" that it was an arm, and thus no evidence was needed nor requested. Miller's lawyer just moved for dismissal on grounds that the law was not a law at all, since it violated the second amendment (and that the Government failed to provide any evidence that the 12 guage double barrel had ever been transferred without paying the tax, or at all). The judge said in effect, "Bang!" "Case dismissed".
What the lawyer, Paul E. Gutensohn, actually wrote was:
That the Second Amendment to the Constitution of the United States provides: "A well regulated militia being necessary to the security of a free state, the right of people to keep and bear arms, shall not be infringed;" that the said "National Firearms Act" is in violation and contrary to said Second Amendment and particularly as charging a crime against these said defendants, is unconstitutional and therefore does not state facts sufficient to constitute a crime under the statutes of the United States.
4. That the indictment herein charges the violation of Section 1132 (c) and Section 1132 (j) in which it is made unlawful to transfer a firearm which has previously been transferred on or after the 30th day of June, 1934, in addition to complying with subsection (c), transfers therewith the stamp affixed order; that there is no charge in the said indictment that the said defendants made any transfer whatsoever of the double-barrel 12 guage shotgun having less than 18 inches in length, and said indictment, therefore, does not charge facts sufficient to constitute a crime under the statutes of the United States.
5. That the indictment charges the defendants "not having in their possession a stamp affixed written order for said firearms, as provided and required by Section 1132(c) and section 1132(j) Title 26, United States Code, and the regulations issued under the authority of said Act of Congress known as the National Firearms Act, approved June 26, 1934"; that said Section 1132(c) and Section 1132(j) does not make it a violation to merely fail to possess a stamp affixed written order for said firearms, and a failure to charge a transfer of said firearms by or to the said defendants, fails to set forth facts sufficient to constitute a crime under the statutes of the United States.
What Judge Heartsill Ragon wrote was:
The defendants in due time filed a demurrer challenging the sufficiency of the facts stated in the indictment to constitute a crime and further challenging the sections under which said indictment was returned as being in contravention of the Second Amendment to the Constitution of the United States. The indictment is based upon the Act of June 26, 1934, c.757, Section 11, 48 Statute 1239. The court is of the opinion that this section is invalid in that it violates the Second Amendment to the Constitution of the United States providing, "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."
The demurrer is accordingly sustained. (the Bang! part :) )
Every American is entitled to the protection of their inalienable rights, regardless of what State or local government say. You're on the wrong forum if you say otherwise:
Our Constitution explicitly restricts the power of our federal government; and our Bill of Rights guarantees that NO government may infringe upon our God given unalienable rights. - Jim Robinson, FR Mission Statement
and the laws it enforces?
Like health care, education, labor laws, poverty programs, etc.? Oh yeah, the "substantial effects" fraud put those in the hands of Congress and the federal courts.
Hypocrite.
Guessed you missed the "present evidence" part of his statement. Which is something done by one's lawyer on one's behalf.
Hell, as far as we know, he wasn't even a militia member!
Not that it matters, but he was 40 years old when the case was decided by the Supreme Court and thus he was a member of the federal militia, which then as now, was defined as all males 18-45.
I'm sure he was also a member of the militia of Oklahoma, which likely had a different age criteria.
That aside, he was punk and a typical low level gang member of the Dirty Thirties. He'd been involved in a jailbreak where a deputy was killed, but turned state's evidence.
I suspect that fact may have been part of the reason he had that short barreled shotgun in the first place, and also the reason he was dead, shot four times with a .38, before the Supreme Court released the decision.
His co-defendant in the original case, Frank Layton, was no nice guy either, yet after he pleaded guilty the Judge, who had originally refused to accept guilty pleas before the appeal of the dismissal, gave him five years probation, which he successfully served.
Shows how much you know about the case. The original court did not even try Miller and Layton. Instead, on petition of their lawyer, dismissed the case on grounds that the law in question violated the second amendment, and thus constituted no law at all. The government appealed directly to the Supreme Court, there was no action at the Court of Appeals level. You could know that much just by reading the Supreme Court decision which states:
District Court held that section eleven of the Act violates the Second Amendment. It accordingly sustained the demurrer and quashed the indictment.
The cause is here by direct appeal.
Better do your homework before posting such "made up out of whole cloth" musings.
Those were the words of the US First Circuit Court, not mine. Take your beef to them. Of course they wrote that much closer in time, and in knowledge of the Miller case, than you or I, and I suspect the Judge who wrote the words has passed on, so you'll have to complain to him when you meet him.
The same one that they were referring to in the Militia Act of 1792? That act speaks of "the militia":
, singular. Except in one place where refers to militias then existing as independent units, some not organized by local or state goverments, but "free standing" as it were.
I. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia,.
Later, and current law, defined(s) "the militia" as consisting of all males 18-45, rather than speaking of them being required to enroll in the militia.
The same one that they were referring to in the Militia Act of 1792? That act speaks of "the militia":
, singular. Except in one place where refers to militias then existing as independent units, some not organized by local or state goverments, but "free standing" as it were.
I. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia,.
Later, and current law, defined(s) "the militia" as consisting of all males 18-45, rather than speaking of them being required to enroll in the militia.
What inquiry? There was no testimony, no evidence, just the government's brief, with no appearance for the former defendents. (remember their case had been dismissed by the District Court?)
Why bring it up? To show how US Federal Circuit Judges "read" the meaning of the rule set forth in Miller
You don't suppose they, being closer in time, by a lot, since cases was only two years, more or less, after the Miller decision. WW-II was not "years away" when Miller was decided, but mere months. The Cases court was referring to events in Europe at the time, where the war had been raging for around 2 years.
Nice misdirection with the "years away"
The military ordered and used tens of thousands of "trench guns" for the military. They were 20".
18". Get your facts straight, even when they support your argument.
Actually there was, although AFAIK, it was never appealed to, and thus like the 3rd amendment is judicial terra incognita. Even laying aside the second paragraph of Article VI, see Article III, section 4.
It was clear from the Corfield quote in #1213 that J. Washington was speaking of fundamental rights. You refused to accept it, so I further quoted from the same opinion - demonstrating that, in fact, he was speaking of fundamental rights.
Well, THIS century, certainly. Even the last century, the last opinion expressed by the USSC that was narowly "on point" happened in the first third of the 20th century. The Miller case.
Not quite. This gun [with a 60km/36 miles range]
Not this one [M777, range circa 30-40 km (assisted), 22.5-30 km (unassisted)]
There is, however, a nifty design workup of a wheeled SP versiuon of the M777, based on a Marine LAV/Stryker 8-wheel chassis- though it's likely not amphibious like a LAV.
Well, THIS century, certainly. Even the last century, the last opinion expressed by the USSC that was narowly "on point" happened in the first third of the 20th century. The Miller case.
The decision in Plona v. United Parcel Service, 2007 (U.S. District Court, N.D. Ohio was also in this XXI Century. And if the DC *militia* court decision does not go to the Supremes, Plona v. UPS almost certainly will.
Actually, the M777 is exactly what I want: towable, and small enough to park in my driveway (somehow I don't think the HOA would object).
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.