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
|
Oooo-rah.
That kind of talk from a judge gets me all...tingly. Good for them. There may be hope yet.
Yeah right. I bet she'd rule that the don't have first amendment rights either?
Let's pretend that I'm starting to understand this stuff.
Until SCOTUS actually takes up these cases, this ruling only applies to the DC area. And the Texas ruling would only apply in that Circuit area. And those of us in California are still stuck with the 9th Circus ruling.
Did I get it right?
Awwww, that's mean spirited. I'm sure they follow 'most' laws.
Oops, on second thought better make that 'some' :-)
The same reason Rosy O Donnel needs a permit to open up her gob and say stupid stuff. Oh wait she doesn't need a permit... hmmm ;-)
Hubba Hubba!
And spin machines that big take a while to start up.
That's actually a real debate in the pro-permit community. We wondered if by advocating passage of shall-issue permit laws, we were tacitly acknowledging that other infringements of the 2nd Amendment were OK (i.e., a permit was Constitutionally needed to carry). Most came down on the side that under existing conditions, asserting the Constitutional right in the face of infringing laws would be expensive and risky (given the courts), so getting shall-issue laws passed was a good thing, but we'd keep up with the fight on the Constitutional side as well.
D.C. CIRCUIT STRIKES DOWN DISTRICT OF COLUMBIA GUN CONTROL LAW as a violation of the Second Amendment, adopts individual rights view. Howard Bashman has more, and the opinion is here. This is a very important development.
Some additional background on the Second Amendment can be found here, here and here.
UPDATE: Okay, I've given the majority opinion a very quick read. It's very much in line with the so-called "Standard Model" of individual rights scholarship, and also makes much of the Tennessee cases that I discuss here and that the Supreme Court noted in Miller. Seems like a very strong opinion; the dissent, on the other hand, looks a bit odd. I'm going to have to think about it a bit more to decide if it's really as flimsy as it seems.
ANOTHER UPDATE: Eugene Volokh notes the decision, and has some further thoughts about timing and the 2008 elections.
Perhaps the Democrats would be wise to take the issue off the table politically by passing some sort of federal legislation guaranteeing American citizens the right to own guns.
YET ANOTHER UPDATE: Tim Lynch at Cato weighs in.
posted at 10:28 AM by Glenn Reynolds
Drudge is breaking it. The MSM will soon have to cover this.
Good points ... so we're back to exploding heads at WaPo.
Yeah, like..uh...Well yeah, there's gotta be a couple.
There is a pervasive historical acceptance of the notion of forbidding or licensing concealed carry - on the grounds that anyone not carrying openly must be up to no good (ergo, there is pervasive historical acceptance of the notion that open carry is hunky-dory).
Sadly, it probably won't for long.
The 4th Circuit Court of Appeals is likely the next step. They may overturn this.
But hope remains. Since the DC District Court cited US Supreme Court precedent...this may yet stand if it goes that far. And I think it will.
The only problem will be if it gets to the USSC after the 2008 elections. The makeup of the Court will be changing. I fear for the worse.
Who was appointed by Daddy Bush. Another disappointment.
They haven't gotten to the "carry" part yet - people who live in the District aren't even allowed to OWN a gun.
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.