Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

DC Circuit strikes down DC gun law
How Appealing Blog ^ | 03/08/2007 | Howard Bashman

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


TOPICS: Breaking News; Constitution/Conservatism; Culture/Society; US: District of Columbia
KEYWORDS: 2ndamendment; banglist; devilhasiceskates; districtofcolumbia; firsttimeruling; flyingpigs; frogshavewings; giuliani; gunlaws; hellfreezesover; individualright; rkba; secondamendment; selfdefense
Navigation: use the links below to view more comments.
first previous 1-20 ... 241-260261-280281-300 ... 1,221-1,238 next last
To: School of Rational Thought
This was a 3 judge appeals court ruling. 3 out of the how ever many judges it is that make up the DC Circuit. If it's appealed and heard 'en banc' that means that all of the judges of the DC Circuit (minus the 3 who's ruling is being appealed) will hear the case.

With just a touch of sarcasm, what this means is that the only 2 members of the DC Circuit who likely believe that the 2nd Amendment is an individual right will have to sit out the appeal...
261 posted on 03/09/2007 10:48:44 AM PST by green iguana
[ Post Reply | Private Reply | To 251 | View Replies]

To: ArrogantBustard
If this holds up, I see a crime-surge in Maryland's future.

I can tell you are the kind of person who thinks things through.

262 posted on 03/09/2007 10:48:53 AM PST by syriacus (This recent "cold snap" is God's little joke on the Earth-worshipping global warming alarmists.)
[ Post Reply | Private Reply | To 21 | View Replies]

To: PurpleMan

"When guns are outlawed, only Carl Rowan (RIP) will have guns."


263 posted on 03/09/2007 10:49:40 AM PST by 3AngelaD (ic.)
[ Post Reply | Private Reply | To 9 | View Replies]

To: angkor

A liberal becomes a conservative, when he gets mugged.


264 posted on 03/09/2007 10:50:54 AM PST by ArrogantBustard (Western Civilisation is aborting, buggering, and contracepting itself out of existence.)
[ Post Reply | Private Reply | To 255 | View Replies]

To: Labyrinthos
Giuliani has stated that gun control is a state and local concern.

Giuliani's statements along these lines are nothing more than a pathetic attempt to cover up his track record when he was mayor of New York. Back then, he specifically DID NOT view gun control as a "state and local concern" -- as evidenced by his numerous calls for the Federal government to enact Federal gun control laws similar to New York's (plus his abuse of the Federal court system in filing frivolous lawsuits against gun manufacturers in other jurisdictions).

265 posted on 03/09/2007 10:52:01 AM PST by Alberta's Child (Can money pay for all the days I lived awake but half asleep?)
[ Post Reply | Private Reply | To 168 | View Replies]

To: domenad

It is at least the SECOND court to rule that the 2nd Amendment confers an Invividual right. A judge in the Texas area ruled similarly about 3-4 years ago, when his divorcing wife tried to use a pre-emptive antigun restaining order against him.


266 posted on 03/09/2007 10:52:07 AM PST by 2harddrive (...House a TOTAL Loss.....)
[ Post Reply | Private Reply | To 2 | View Replies]

To: unixfox

LOL! Layers of sarcasm--I am lost. I will just get back to reading this opinion.

The opinion is good step, but I am concerned with the "reasonable restrictions" language starting on page 53.


267 posted on 03/09/2007 10:53:52 AM PST by Stat-boy
[ Post Reply | Private Reply | To 256 | View Replies]

To: green iguana

Doesn't seem like this ruling is important enough to merit an en banc ruling.

The DC circuit isn't the 9th. It's fairly conservative, and hopefully we can get 1 more judge on there.


268 posted on 03/09/2007 10:54:53 AM PST by zendari
[ Post Reply | Private Reply | To 261 | View Replies]

To: Domandred

I didn't read the decision but if it ends up being something cannot ban a class of guns but can still ban specific firearms then that doesn't help at all really.



The ruling addressed and disposed of the DC position that a pistol ban doesn't ban all arms. The ruling said that if you are banning a type of "arms", it is not acceptable, even if people have other options (like sabers, in the opinion's example.)

Pretty solid.

I'll reread it again to see how an AWB might be treated.

The ruling is quite tolerant of restrictions on concealed carry, on felons, and such, but not on gun types.


269 posted on 03/09/2007 10:54:59 AM PST by Atlas Sneezed (Your FRiendly FReeper Patent Attorney)
[ Post Reply | Private Reply | To 239 | View Replies]

To: syriacus
I can tell you are the kind of person who thinks things through.

Thank you. I'm sure that if you bother to examine the facts of the matter, you'll agree that it's not an unreasonable expectation.

270 posted on 03/09/2007 10:55:09 AM PST by ArrogantBustard (Western Civilisation is aborting, buggering, and contracepting itself out of existence.)
[ Post Reply | Private Reply | To 262 | View Replies]

To: Domandred
It re-iterates what so many of us have been saying for so long. Nice to see that our government isn't totally hosed. It restores some faith...

For now...

This will more than likely go en banc and possibly the SCOTUS. It's very well referenced and this particular court is rarely over turned from what I've heard on other boards.

It'll take about a year or so to work things through...

Hhmmm (tinfoil) just in time for the 2008 election silly season(/tinfoil).

271 posted on 03/09/2007 10:55:39 AM PST by Dead Corpse (What would a free man do?)
[ Post Reply | Private Reply | To 258 | View Replies]

To: zeugma

Sorry if I was condescending...

If DC (Not the FedGov), lets this stand, their gun laws get gutted.

If they appeal En Banc and lose, their gun laws are gutted.

If they appeal to the USSC, and the court refuses it, their gun laws are gutted.

If they go En Banc and win, the claimants appeal to the USSC. At this point, if the USSC refuses, we lose.

If they go to the USSC, and win, we lose.

Or, it goes to the USSC, and we win.

I dunno, but I expect it ain't over.


272 posted on 03/09/2007 10:56:59 AM PST by patton (Sanctimony frequently reaps its own reward.)
[ Post Reply | Private Reply | To 260 | View Replies]

To: goldstategop
Its more than ground-breaking. Its mean EVERY gun control law that inhibits or prevents people from exercising their right of self-defense is on its face, unconstitutional.

Finally, a slippery slope in the right direction.

273 posted on 03/09/2007 10:59:13 AM PST by antiRepublicrat
[ Post Reply | Private Reply | To 86 | View Replies]

To: 2harddrive
It was the 5th Circuit, and the plaintiff was a medical doctor, not a judge.  USA v. Emerson
274 posted on 03/09/2007 10:59:48 AM PST by absalom01 (The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.)
[ Post Reply | Private Reply | To 266 | View Replies]

To: Yo-Yo

I love it


275 posted on 03/09/2007 11:02:31 AM PST by The Raven
[ Post Reply | Private Reply | To 18 | View Replies]

To: headstamp

So, if an amendment to the Constitution, which has been part of the Constitution for a long time by definition, does not apply to the area of DC.....how is it that the Constitution that is supposed to function as the foundation of the government IN DC? (supposedly, I know!)


276 posted on 03/09/2007 11:04:47 AM PST by griffin (Love Jesus, No Fear!)
[ Post Reply | Private Reply | To 30 | View Replies]

To: KeyesPlease
If the Supremes agree that it is an indivicual right, whether or not it is "fundamental" enough to apply against the states.

I always noticed that "shall not be infringed" had no target. It was not "Congress shall not infringe" or "States shall not infringe." It is a blanket statement that no such infringement can occur within the United States of America. Plain text to me says no incorporation is needed, as it always applied.

277 posted on 03/09/2007 11:05:35 AM PST by antiRepublicrat
[ Post Reply | Private Reply | To 134 | View Replies]

To: patton
Yup.

The stakes just got a lot higher.  I don't know that I like the timing, but it is what it is.

Liberty will either acheive a great victory, or suffer a crushing defeat, in the next 18 months.
278 posted on 03/09/2007 11:07:23 AM PST by absalom01 (The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.)
[ Post Reply | Private Reply | To 272 | View Replies]

To: ArrogantBustard

That was a good explanation, it will be interesting to watch for that.


279 posted on 03/09/2007 11:07:53 AM PST by ansel12 (America, love it ,or at least give up your home citizenship before accepting ours too.)
[ Post Reply | Private Reply | To 71 | View Replies]

To: Dead Corpse
This has to be one of the biggest thrills of my long life on this earth! Maybe that's why I was so skeptical at first.

Hallelujah!

280 posted on 03/09/2007 11:08:31 AM PST by basil (Exercise your Second Amendment rights--buy another gun today.)
[ Post Reply | Private Reply | To 99 | View Replies]


Navigation: use the links below to view more comments.
first previous 1-20 ... 241-260261-280281-300 ... 1,221-1,238 next last

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.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson