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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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