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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
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To: cryptical; xzins; Revelation 911; Corin Stormhands; blue-duncan
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.

Henderson, Karen LeCraft

Born 1944 in Oberlin, OH

Federal Judicial Service:
Judge, U. S. District Court, District of South Carolina
Nominated by Ronald Reagan on June 3, 1986, to a seat vacated by William W. Wilkins, Jr.; Confirmed by the Senate on June 13, 1986, and received commission on June 16, 1986. Service terminated on July 11, 1990, due to appointment to another judicial position.

Judge, U. S. Court of Appeals for District of Columbia Circuit
Nominated by George H.W. Bush on May 8, 1990, to a seat vacated by Kenneth W. Starr; Confirmed by the Senate on June 28, 1990, and received commission on July 5, 1990.

Education:
Duke University, B.A., 1966

University of North Carolina School of Law, J.D., 1969

Professional Career:
Private practice, Chapel Hill, North Carolina, 1969-1970
Assistant state attorney general, South Carolina, 1973-1978
Senior assistant state attorney general, Director Special Litigation Section, South Carolina, 1978-1982
Deputy state attorney general, Director Criminal Division, South Carolina, 1982-1983
Private practice, Charleston and Columbia, South Carolina, 1983-1986


Race or Ethnicity: White

Gender: Female

.

Can we expect any better from Rudy Giuliani???????


301 posted on 03/09/2007 11:22:21 AM PST by P-Marlowe (LPFOKETT GAHCOEEP-w/o*)
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To: CharlesWayneCT; Alas Babylon!

Well, in any event, long live Clayton Williams!


302 posted on 03/09/2007 11:22:37 AM PST by sam_paine (X .................................)
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To: jmc813
Even the DU'ers are praising this decision!

Links?

Yet another reason to post the hell-freezing-over picture. 

303 posted on 03/09/2007 11:23:00 AM PST by zeugma (MS Vista has detected your mouse has moved, Cancel or Allow?)
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To: Towed_Jumper
Thanks. ALL of the judges assigned to that court hear the case and rule on it. Does that include the three who originally ruled. See post 261
304 posted on 03/09/2007 11:23:38 AM PST by School of Rational Thought (27 B stroke 6 required)
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What does "en banc" mean?

It's where people keep their money, but that's not important right now.

:)

305 posted on 03/09/2007 11:23:38 AM PST by Ken H
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To: AIC
Then why does a person need a conceal carry permit to be able to carry a weapon concealed?

One thing at a time, good sir, one thing at a time. We're getting there...
306 posted on 03/09/2007 11:24:19 AM PST by JamesP81 (Eph 6:12)
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To: jmc813
Interesting. On three fronts: A) The second amendment protects an individual right, B) The second amendment applies to the states, and C) The District of Columbia is a state.

Whew! What's next? Machine guns are arms? Licensing anyone is an infringement? Concealed or open carry is protected under "to bear arms"?

That's really about all they left out.

307 posted on 03/09/2007 11:24:19 AM PST by robertpaulsen
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To: cryptical
I oughta post this to DU and watch the heads explode!

But I suppose that wouldn't be the good Christian thing to do...
308 posted on 03/09/2007 11:26:36 AM PST by JamesP81 (Eph 6:12)
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To: NeoCaveman

You don't have to join the NRA to be pro-gun.

I just hope the typical b.s. statement doesn't come out of Romney's mouth that: "Well, this should be a state issue," sorta like his abortion stand. Why can't he just say everyone should be able to carry a gun in their car. Come right out and say it. Give the stats between D.C. and Arlington. whatever. Just friggin take a stand and be a pro-active conservative. Because when everyone is packin', they don't come attackin'.


309 posted on 03/09/2007 11:27:23 AM PST by Tulsa Ramjet ("If not now, when?" "Because it's judgment that defeats us.")
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To: JamesP81
> I suppose that wouldn't be the good Christian thing to do...

Enlightening the ignorant is ALWAYS the good Christian thing to do.

310 posted on 03/09/2007 11:27:40 AM PST by NewJerseyJoe (Rat mantra: "Facts are meaningless! You can use facts to prove anything that's even remotely true!")
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To: azhenfud
"There are actually justices who believe this?"

Two, anyways.

311 posted on 03/09/2007 11:27:41 AM PST by robertpaulsen
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To: cryptical

Fascinating! Thanks for the post.


312 posted on 03/09/2007 11:28:04 AM PST by American Quilter (The urge to save humanity is nearly always a cover for the urge to rule. - H. L. Mencken)
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To: robertpaulsen

Interesting. On three fronts: A) The second amendment protects an individual right, B) The second amendment applies to the states, and C) The District of Columbia is a state.
Whew! What's next? Machine guns are arms? Licensing anyone is an infringement? Concealed or open carry is protected under "to bear arms"?

That's really about all they left out.




One can only hope that concealed carry gets the same protection! What an awesome development that would be! Just think, any crook, anywhere, at any time, would no tknow ifhis next victim were packing heat! Now THAT'S a deterrent!

--PP


313 posted on 03/09/2007 11:28:50 AM PST by VideoPaul
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To: patton
Sorry if I was condescending...

No biggie. I was unclear in my original post. Your comment was understandable.

You're right about FedGov being in a fairly no-win position, but I have faith that the enrobed ones will find a way to duck the issue (like they always do), and Fedgov sure as hell isn't going to enforce it. 

314 posted on 03/09/2007 11:29:53 AM PST by zeugma (MS Vista has detected your mouse has moved, Cancel or Allow?)
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To: jmc813
Even the DU'ers are praising this decision!

There are a surprising number of pro-2nd amendment people over there. They may be celebrating openly now but that's only because the hive hasn't swarmed the threads and beat them into silence/submission. Give it some time......the Brady bunch is mustering their forces. ;)

315 posted on 03/09/2007 11:30:10 AM PST by jess35
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To: robertpaulsen

Is there really any difference on how you would behave if you had a full auto assault rifle as opposed to a revolver? The answer is no, that is why regulating guns is a loser from the get go. The obvious corollary, an honest law abiding citizen is a honest law abiding citizen. And Democrats do not trust those people to act responsibly.


316 posted on 03/09/2007 11:30:19 AM PST by Tarpon
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To: Tulsa Ramjet
Because when everyone is packin', they don't come attackin'.

Right on!

317 posted on 03/09/2007 11:31:16 AM PST by NeoCaveman (Hillary Hugo Chavez wants to "take those profits" away from you, for the common good)
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To: cryptical
Look at the tripe coming out from the Brady bunch.........


http://bradycampaign.org/media/release.php?release=878

News Release
Statement Of Brady President Paul Helmke On DC Circuit's Ruling Striking Down DC Handgun Law

For Immediate Release:
03-09-2007

Contact Communications:
(202) 289-7319

Washington, D.C. – Paul Helmke, President of the Brady Center to Prevent Gun Violence, issued the following statement:

“The 2-1 decision of the U.S. Court of Appeals for the D.C. Circuit in Parker v. District of Columbia striking down the District of Columbia’s handgun law is judicial activism at its worst. By disregarding nearly seventy years of U.S. Supreme Court precedent, two Federal judges have negated the democratically-expressed will of the people of the District of Columbia and deprived this community of a gun law it enacted thirty years ago and still strongly supports.

“This ruling represents the first time in American history that a Federal appeals court has struck down a gun law on Second Amendment grounds. While acknowledging that ‘reasonable restrictions’ to promote ‘the government’s interest in public safety’ are permitted by the Second Amendment, the two-judge majority substituted its policy preferences for those of the elected representatives of the District of Columbia. ”

318 posted on 03/09/2007 11:31:31 AM PST by NewJerseyJoe (Rat mantra: "Facts are meaningless! You can use facts to prove anything that's even remotely true!")
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To: headstamp

using the judges logic.

Inalienable rights do not exist in Washington DC. Only those confered by her black robed bretheren.


319 posted on 03/09/2007 11:32:30 AM PST by longtermmemmory (VOTE! http://www.senate.gov and http://www.house.gov)
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To: brazzaville

Being sarcastic. But with the spinning and complaining of the rudybots on the board it's getting hard to tell the difference between their actual behavior and a sarcastic representation of it.

If there's any doubt about my feelings re: rudy, see my profile page ;)


320 posted on 03/09/2007 11:33:32 AM PST by flashbunny (<--- Free Anti-Rino graphics! See Rudy the Rino get exposed as a liberal with his own words!)
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To: cryptical; Admin Moderator

Heh. Gotta love it when the Admin Moderator edits your post by ADDING EMPHASIS!

This decision is big.


321 posted on 03/09/2007 11:33:35 AM PST by coloradan (Failing to protect the liberties of your enemies establishes precedents that will reach to yourself.)
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To: Joe Brower

It's about time that the myth that the militia are the only ones the 2nd Amendment applies to, is dispelled.

It also kills the myth about it being a state Right only ~ the people are all of the people.


322 posted on 03/09/2007 11:34:18 AM PST by blackie (Be Well~Be Armed~Be Safe~Molon Labe!)
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To: HeartlandOfAmerica
The District relies heavily on the use of “bearing arms” in a conscientious objector clause that formed part of Madison’s initial draft of the Second Amendment. The purpose of this clause, which was later dropped from the Amendment’s text, was to excuse those “religiously scrupulous of bearing arms” from being forced “to render military service in person.” THE COMPLETE BILL OF RIGHTS 169 (Neil H. Cogan ed. 1997). The District argues that the conscientious objector clause thus equates “bearing arms” with military service. The Quakers, Mennonites, and other pacifist sects that were to benefit by the conscientious objector clause had scruples against soldiering, but not necessarily hunting, which, like soldiering, involved the carrying of arms. And if “bearing arms” only meant “carrying arms,” it is argued, the phrase would not have been used in the conscientious objector clause because Quakers were not religiously scrupulous of carrying arms generally; it was carrying arms for militant purposes that the Friends truly abhorred (although many Quakers certainly frowned on hunting as the wanton infliction of cruelty upon animals).

--------------

We note that the Ninth Circuit has recently dealt with a Second Amendment claim by first extensively analyzing that provision, determining that it does not provide an individual right, and then, and only then, concluding that the plaintiff lacked standing to challenge a California statute restricting the possession, use, and transfer of assault weapons. See Silveira v. Lockyer, 312 F.3d 1052, 1066-67 & n.18 (9th Cir. 2003). We think such an approach is doctrinally quite unsound. The Supreme Court has made clear that when considering whether a plaintiff has Article III standing, a federal court must assume arguendo the merits of his or her legal claim.

-------------------------

The District’s argument, on the other hand, asks us to read “the people” to mean some subset of individuals such as “the organized militia” or “the people who are engaged in militia service,” or perhaps not any individuals at all—e.g., “the states.” See Emerson, 270 F.3d at 227. These strained interpretations of “the people” simply cannot be squared with the uniform construction of our other Bill of Rights provisions. Indeed, the Supreme Court has recently endorsed a uniform reading of “the people” across the Bill of Rights. In United States v. Verdugo- Urquidez, 494 U.S. 259 (1990), the Court looked specifically at the Constitution and Bill of Rights’ use of “people” in the course of holding that the Fourth Amendment did not protect the rights of non-citizens on foreign soil:

“[T]he people” seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by “the People of the United States.” The Second Amendment protects “the right of the people to keep and bear Arms,” and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to “the people.” See also U.S. CONST., amdt. 1; Art. I, § 2, cl. 1. While this textual exegesis is by no means conclusive, it suggests that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. Id. at 265. It seems unlikely that the Supreme Court would have lumped these provisions together without comment if it were of the view that the Second Amendment protects only a collective right. The Court’s discussion certainly indicates—if it does not definitively determine—that we should not regard “the people” in the Second Amendment as somehow restricted to a small subset of “the people” meriting protection under the other Amendments’ use of that same term.

323 posted on 03/09/2007 11:35:07 AM PST by BurbankKarl
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To: Seruzawa

so now the majority opinion is an assertion of dicta but her MINORITY opinion which is all dicta is valid because .....?


324 posted on 03/09/2007 11:35:51 AM PST by longtermmemmory (VOTE! http://www.senate.gov and http://www.house.gov)
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To: cryptical

Ping


325 posted on 03/09/2007 11:35:56 AM PST by WardMClark (The guy that PeTA hates most. Ask me why.)
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To: cryptical

Sounds like a court ruling went our way!


326 posted on 03/09/2007 11:37:02 AM PST by Southack (Media Bias means that Castro won't be punished for Cuban war crimes against Black Angolans in Africa)
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To: NewJerseyJoe

two Federal judges have negated the democratically-expressed will of the people of the District of Columbia

How about the will of those killed who didn't have a pistol, sister? And how does some episode of a nutcase shooting Reagan give you the right to keep other people from protecting themselves?? Crawl back to your gated community, the rest of us need to be armed and ready. And there is plenty of events noted on FR to show how some unsuspecting business owner or homeowner was able to protect themselves. Go live with the amish. Not that there is anything wrong with them.


327 posted on 03/09/2007 11:37:12 AM PST by Tulsa Ramjet ("If not now, when?" "Because it's judgment that defeats us.")
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To: Tulsa Ramjet
Because when everyone is packin', they don't come attackin'.

sounds like Jesse Jagmo with a brain transplant.

328 posted on 03/09/2007 11:37:20 AM PST by Rakkasan1 ((Illegal immigrants are just undocumented friends you haven't met yet!))
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To: goldstategop
"Its mean EVERY gun control law that inhibits or prevents people from exercising their right of self-defense is on its face, unconstitutional."

Not yet. This ruling only applies to the District of Columbia. The D.C. Court of Appeals is the equivalent of a state supreme court.

329 posted on 03/09/2007 11:38:00 AM PST by robertpaulsen
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To: ctdonath2
In Emerson, they found that he DID have an individual right - which, under very specific circumstances which he met, could be suspended.


They can say all they want, but they did not need to find an individual right to uphold his conviction, which they did.

That's dicta, and it is why today's ruling means something much more. Now, we have a real split among the circuits. The Supreme Court can ignore differences in dicta, but not differences in holdings.
330 posted on 03/09/2007 11:38:23 AM PST by Atlas Sneezed (Your FRiendly FReeper Patent Attorney)
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To: Yo-Yo
but each one will have to be individually adjudicated.

I can live with that.
331 posted on 03/09/2007 11:39:10 AM PST by JamesP81 (Eph 6:12)
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To: cryptical

Praise the Lord. Amen.


332 posted on 03/09/2007 11:39:56 AM PST by gakrak ("A wise man's heart is his right hand, But a fool's heart is at his left" Eccl 10:2)
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To: cryptical
being understood as resistance to either private lawlessness or the depredations of a tyrannical government

Wow! TWO DC Circuit judges GET IT!

Circuit Judge Karen LeCraft Henderson dissented . . . because the Second Amendment's protections . . . do not extend to the District of Columbia, because it is not a State.

Then certainly she won't mind if the other 2 judges stuff a gag in her mouth and tie up her hands so she can't speak, write, or type, and delete the text of her idiotic dissent from the legal record. After all, since this is occurring in DC, she wouldn't be able to claim an infringement of her First Amendment rights, since she doesn't think the Bill of Rights applies to DC.

333 posted on 03/09/2007 11:40:08 AM PST by GovernmentShrinker
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To: patton

That's what I was afraid of. :-) Off to look now.


334 posted on 03/09/2007 11:40:17 AM PST by Larry Lucido (Duncan Hunter 2008)
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To: basil
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.

It's definitely a step in the right direction. But it's only one battle in a larger war. It could be that "tipping point" though.

I'm as cautiously optimistic as I am elated.

335 posted on 03/09/2007 11:44:04 AM PST by Dead Corpse (What would a free man do?)
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To: zendari

"Henderson - Bush 41"

I'm shocked, well he quit the NRA so what do you expect.


336 posted on 03/09/2007 11:44:39 AM PST by A Strict Constructionist (Nobles Oblige, BS, Well take care of it ourselves!)
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To: domenad
Isn't this the first court case stating that the 2nd Amendment applies to individuals?

Hardly, but the gun-grabbers have managed to brainwash a lot of 2A defenders into believing there have been no cases upholding the individual right. I would strongly suggest that you READ the Supreme Court's U.S. v. Miller decision, focusing on what the actual holding was, and read up on the circumstances surrounding the fact that its remand to the lower court was never carried out. Gun-grabbers are fond of citing this case as supporting their claims, but in fact it does just the opposite.

337 posted on 03/09/2007 11:45:16 AM PST by GovernmentShrinker
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To: patton; sit-rep

Post 34


338 posted on 03/09/2007 11:45:33 AM PST by Larry Lucido (Duncan Hunter 2008)
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To: Dead Corpse

"RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States, all or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.:"

I think you misread this. This incorporated the Bill of Rights into the federal constitution, BUT, did not incorporate the BOR's into state law or prempt state constitutions on the issue...the intent of the 14th amendment was to do that.


339 posted on 03/09/2007 11:45:53 AM PST by Jim Verdolini
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To: evad
this isn't scrappleface ..is it??

No, but it's sure hard to believe it's not, when you read preposterous claims from a federal circuit court judge like "the Second Amendment doesn't apply to DC because it's not a state".

340 posted on 03/09/2007 11:47:34 AM PST by GovernmentShrinker
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To: Joe Brower
Quick, pinch me. I must be dreaming!
341 posted on 03/09/2007 11:49:08 AM PST by philman_36
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To: cryptical

wow


342 posted on 03/09/2007 11:49:14 AM PST by redfish53
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To: GovernmentShrinker

If anything, it says that if any arms ARE protected, it's those that the military uses, e.g. M-16s and M-60s. So when people cite Miller to support an AWB, they twist things oppositely to what was intended. (As usual.)


343 posted on 03/09/2007 11:50:09 AM PST by coloradan (Failing to protect the liberties of your enemies establishes precedents that will reach to yourself.)
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To: SmithL
You got it precisely right. That's why the SC should have taken the Emerson case a year ago, to eliminate the conflict among the Circuit Courts. It didn't, and the conflict will stay there until the SC takes a case and settles the issue.

I would hope that either Justice Ginsburg or Justice Stevens are gone and replaced by a new Bush appointee before that happens. Right now, I worry about the outcome of that SC case if Justice Kennedy is the "swing" vote. If Bush makes a new appointment -- confirmed by the Senate or as a recess appointment -- in the mold of Alito and Roberts, I would not worry about the outcome of that case.

John / Billybob

344 posted on 03/09/2007 11:50:54 AM PST by Congressman Billybob (Please get involved: www.ArmorforCongress.com)
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To: robertpaulsen
C) The District of Columbia is a state.

There you go with the lies again.

They specifically stated that just because a Citizen lives in DC, does not mean that the Constitutions protections for their Rights do not apply.

Just because it guts every gun grabber argument you've ever used on these boards is no reason to resort to further dishonesty.

345 posted on 03/09/2007 11:51:18 AM PST by Dead Corpse (What would a free man do?)
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To: Bloody Sam Roberts

"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."

This does not sound right. The DC court IS the Appeals Court, the 4th does not enter in. If it is appealed further, it would be to the full DC Court and then to the Supremes.


346 posted on 03/09/2007 11:51:50 AM PST by Jim Verdolini
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To: robertpaulsen
"... The D.C. Court of Appeals is the equivalent of a state supreme court."

Except for that tiny fact that the judges on that court are all hand-selected by the President of the United States.

I think that's why they call this court 'Supreme Court, Jr.'.

Are there any USSC justices that served on the DC Court of Appeals, to your knowledge?

347 posted on 03/09/2007 11:52:39 AM PST by The KG9 Kid
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To: ctdonath2
 

From Dalton: 

Finally, the government argues that the Gun Control Act, of which section 922(o) is a part, should not be viewed as repealing the National Firearms Act, citing a provision of the Gun Control Act passed in 1968 to that effect. The court in Rock Island Armory rejected the same government argument, observing that "the 1968 Congress cannot bind the Congress of 1986, which decided to ban transfer and possession of machineguns. P.L. 99-308, 100 Stat. 453 (May 19, 1986). Further, a Congressional declaration in 1968 does not solve a constitutional problem which arose in 1986. The ban enacted in 1986 and the government's refusal to accept registrations and tax payments, simply left the registration requirements with no constitutional basis."

 

 And US v. RIA:

The enactment of 18 U.S.C. sec. 922(o) in 1986 removed the constitutional legitimacy of registration as an aid to tax collection. This is because the government interprets and enforces sec. 922(o) to disallow registration, and refuses to collect the tax. Farmer v. Higgins, 907 F.2d 1041, 1042-44 (11th Cir.1990), cert. denied, - U.S. - , III S.Ct. 753, 112 L.Ed.2d 773 (1991). Thus, sec. 922(o) undercut the constitutional basis of registration which had been the rule since Sonzinsky.

Finally, the prosecution quotes an enactment passed in 1968 that the provisions of Title I of the Gun Control Act shall not modify or affect the National Firearms Act. (Footnote 15) However, the 1968 Congress cannot bind the Congress of 1986, which decided to ban transfer and possession of machineguns. P.L. 99-308, 100 Stat. 453 (May 19, 1986). (Footnote 16) Further, a Congressional declaration in 1968 does not solve a constitutional problem which arose in 1986. The ban enacted in 1986, and the government's refusal to accept registrations and tax payments, simply left the registration requirements with no constitutional basis. It is the duty of the judiciary to declare such laws unconstitutional. Marbury v. Madison, I Cranch. 137, 176-77, 2 L.Ed. 60 (1803).

In sum, since enactment of 18 U.S.C. sec. 922(o), the Secretary has refused to accept any tax payments to make or transfer a machinegun made after May 19, 1986, to approve any such making or transfer, or to register any such machinegun. As applied to machineguns made and possessed after May 19, 1986, the registration and other requirements of the National Firearms Act, Chapter 53 of the Internal Revenue Code, no longer serve any revenue purpose, and are impliedly repealed or are unconstitutional. Accordingly, Counts l(a) and (b), 2, and 3 of the superseding indictment are

DISMISSED.

 

Reads to me like the entirety of 922(o) was struck as it lost the tax nexus that made it constitutional. 

348 posted on 03/09/2007 11:52:43 AM PST by zeugma (MS Vista has detected your mouse has moved, Cancel or Allow?)
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To: Tulsa Ramjet
two Federal judges have negated the democratically-expressed will of the people of the District of Columbia

Uh huh. Just like federal judges "negated the democratically-expressed will of the people" in southern states with Jim Crow laws. There is no right to vote away other people's Constitutional rights.

349 posted on 03/09/2007 11:54:34 AM PST by GovernmentShrinker
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To: cryptical
PWNED!!!!
350 posted on 03/09/2007 11:55:36 AM PST by Lockbar (March toward the sound of the guns.)
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