Skip to comments.DC Circuit strikes down DC gun law
Posted on 03/09/2007 8:10:02 AM PST by crypticalEdited 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
Re-read the FedCon's Art 6 Para 2. Then re-read Amend 2. the 14th re-iterated what so many States were ignoring due to the slavery issue.
I'm sure you have, therefore, an explanation for the Preamble to the Bill of Rights?
"THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution."
Looks to me as though they intended the BOR to apply to the newly formed federal government.
(Note: "in the Government" not "in our governments". Also, "its institution" can only be the instituting of the federal government)
That would be effin' awesome.
I concur with your amazement over this ruling. Half way through I almost expected a "can you imagine if this were true" line that indicated a vanity post only. As a lawyer I am very excited about what this may bring if confirmed by SCOTUS. I think we have at least a 50/50 shot so long as our pragmatic CJ can demonstrate to Kennedy that this is a workable opinion. All in all very exciting news.
They're actually taking it pretty well over there. That's the funny thing about DU. They're morons on everything else, but it seems as if most of them are pro-gun.
Congress OF THE United States begun and held at the City of New York, on Wednesday the Fourth of March, one thousand seven hundred and eighty nine.
THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution
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.:
ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.
This clearly is all the "incorporation" the Amendments need to be part of the "Supreme Law of the Land", the "laws of any State to the contrary notwithstanding", and "the Judges of every State shall be bound thereby". "Shall not be infringed".
Again, your arguments are completely gutted.
John / Billybob
P.S. I am not Clayton Williams in disguise.
It follows that the weapons described in the Act were in common use at the time, particularly when one considers the widespread nature of militia duty. Included among these militia weapons were long guns (i.e., muskets and rifles) and pistols. Moreover, the Act distinguishes between the weapons citizens were required to furnish themselves and those that were to be supplied by the government. For instance, with respect to an artillery private (or matross), the Act provides that he should furnish himself with all the equipments of a private in the infantry, until proper ordnance and field artillery is provided. Id. at 272. The Act required militiamen to acquire weapons that were in common circulation and that individual men would be able to employ, such as muskets, rifles, pistols, sabres, hangers, etc., but not cumbersome, expensive, or rare equipment such as cannons. We take the outfitting requirements of the second Militia Act to list precisely those weapons that would have satisfied the two prongs of the Miller arms test. They bore a reasonable relationship to the preservation or efficiency of a well regulated militia, because they were the very arms needed
for militia service. And by the terms of the Act, they were to be personally owned and of the kind in common use at the time. The modern handgunand for that matter the rifle and long-barreled shotgunis undoubtedly quite improved over its colonial-era predecessor, but it is, after all, a lineal descendant of that founding-era weapon, and it passes Millers standards. Pistols certainly bear some reasonable relationship to the preservation or efficiency of a well regulated militia. They are also in common use today, and probably far more so than in 1789. Nevertheless, it has been suggested by some that only colonial-era firearms (e.g., single-shot pistols) are covered by the Second Amendment. But just as the First Amendment free speech clause covers modern communication devices unknown to the founding generation, e.g., radio and television, and the Fourth Amendment protects telephonic conversation from a search, the Second Amendment protects the possession of the modern-day equivalents of the colonial pistol. See, e.g., Kyllo v. United States, 533 U.S. 27, 31-41 (2001) (applying Fourth Amendment standards to thermal imaging search).
Anything that could be used for militia service or self defense is expressly PROTECTED. This would include machine guns.
I think this is a great day, however, I am afraid to go outside. The pig that are flying over this place may not have spincter control.
Exceedingly hard to plot a "works rebellion" if said workers got no guns... ;-)
Most of the population is pro-gun. IMHO it is the one issue that has kept the Democrats from sweeping control of every office from dogcatcher to President.
Thanks God at least somebody is actually interpreting the Constitution occasionally.
One other point: on pages 57 & 58, the court's opinion upon unreasonable restrictions placed upon Constitutional rights is established against the side of the government and, by extrapolation, may be extended to the unconstitutional CFR law and its unreasonable restrictions.
His argument is that the Supremacy Clause applies the U.S. Constitution and all the amendments, including the Bill of Rights, to the states from the time of ratification.
Yes, I realize that's crazy, especially given the wording of the Preamble to the Bill of Rights, the actual purpose of the Supremacy Clause, documented constitutional debates, the wording of the first amendment, actual U.S. Supreme Court case law, the need for the 14th amendment, and common sense.
Just .... let it slide.
"Re-read the FedCon's Art 6 Para 2. Then re-read Amend 2. the 14th re-iterated what so many States were ignoring due to the slavery issue."
It was not the intent of the founders to force the states to apply the federal bill of rights. In fact, almost every court case I can find on the issue before 1866 states specifically that the 2nd amendment is a restriction on actions of the federal government and was dismissed as not applying to state law. The debate around the 14th also strongly supports the idea that the state of Constitutional Law was such that the protection of the Federal bill of rights, not just guns but assembly and speech, did not apply to the states. As the states had ignored the Civil Rights act and were busily disarming blacks, preventing them from assembling and voting, the amendment was enacted specifically to reverse that practice. That the Courts ignored the intent and selectively incorporated the rights is another issue.
In a literal sense, I think you're exactly right. At the time, the Founding Fathers clearly desired that the citizens had some kind of military parity with the government. The term 'bear arms' has a deeply military connontation, not a hunting one.
Now, does that mean that Thomas Jefferson wanted individual citizens to own cruise missiles? Tanks? Grenade launchers? It's hard to say, exactly, since they weren't around at the time. Certainly private citizens owned ships and cannon, which were clearly military grade of the time. A letter of marque serves no purpose if there aren't heavily armed citizens to employ. One could infer that the Founding Fathers wanted the citizens to have pretty much anything that the government could.
At least in the late 18th century. How about the early 21st? A lot of the problems herin is that they never imagined we'd be operating on the same Constitution (amended or not) over 200 years later. It seems to me that under what appeared to be their intent, they'd be more open for the banning of handguns (as they are more useful in crime than in warfare) than for any restrictions on rifles, machine guns, or heavier items. Just my take, anyway.
--Justice Clarence Thomas, Footnote 2, Printz
Given that the decision states, DC is not a state, where did "C) DC is a State", come from?
Agreed. The application of logic and reason should not shock us, but on this issue it does - considering all of the lies, misinterpretations and other crap we've had to deal with. The dissent is absurd.
We gave the Republicans both houses and the Presidency. They didn't do this or anything approaching it.
If the Democrats do the above, I may consider switching parties.
Good to see you here.
Hope you are ready to eat a little crow.
This is the first step on a long road.
Once this is upheld - and it can't be overturned without calling into question the liberal's pet individual rights cases dealing with abortion, sodomy and other classic "left" issues - the next thing to be determined is whether the individual right is fundamental or not.
This must be done so that SCOTUS can determine what type of individual right analysis to use when analyzing how the various laws stand with respect to the second amendment.
Going to be a fun next 10 or 15 years.
Funny... all those are on MY side of the argument. Not yours. All you've got is your dictum in your hands.
"It had become an universal and almost uncontroverted position in the several States, that the purposes of society do not require a surrender of all our rights to our ordinary governors; that there are certain portions of right not necessary to enable them to carry on an effective government, and which experience has nevertheless proved they will be constantly encroaching on, if submitted to them; that there are also certain fences which experience has proved peculiarly efficacious against wrong, and rarely obstructive of right, which yet the governing powers have ever shown a disposition to weaken and remove. Of the first kind, for instance, is freedom of religion; of the second, trial by jury, habeas corpus laws, free presses." --Thomas Jefferson to Noah Webster, 1790. ME 8:112
So yes. Bobby. The BoR protects individual Rights. Not just from the Feds, but from the States as well.
"What is true of every member of the society, individually, is true of them all collectively; since the rights of the whole can be no more than the sum of the rights of the individuals." --Thomas Jefferson to James Madison, 1789. ME 7:455, Papers 15:393
"Laws abridging the natural right of the citizen should be restrained by rigorous constructions within their narrowest limits." --Thomas Jefferson to Isaac McPherson, 1813. ME 13:327
"The whole of the Bill [of Rights] is a declaration of the right of the people at large or considered as individuals It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of." Albert Gallatin of the New York Historical Society, October 7, 1789
Page 46 of the decision in the thread in case you missed it:
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 Amendments civic purpose, however, the activities it protects are not limited to militia service, nor is an individuals enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.
Go suck eggs you Brady Troll...
Thank you. Slide it shall.
I love 2A historical precedence and the historical documentation thereof. While the beginning of this document was quite dry, the meat and potatoes of it, explanations of militial designations, required arms, are very cool and interesting.
This decision, while landmark, still pushes it back to the courts, and I'm certain the District will appeal to the Surpreme Court on the decision, which, as stated in the BreitBart article, would put them in the position of ruling on the 2A for the first time since Miller. Given the current formation of the Surpreme Court, I'm slightly worried, but I don't believe it'll be done without the nation's attention focused heavily thereunto. And while the Supreme Court may actually narrow their decision to only the issue involved in this particular case, I don't believe they can rule on it without making a definitive statement on the status of the 2A in our day and time.
Of particular interest, I found, was the ruling that handguns are considered part and parcel to today's "militia," as is were, and they are absolutely considered implements of utility to the militia and the military proper. In relation to the military, I find it interesting that they didn't mention anything about the Framer's intent to bar or hinder the formation of a standing army during times of peace, but given the depth of the opinion on this case, I believe it doesn't need to be discussed or brought up. They were pretty thorough in the meaning behind having a militia, its utility, its necessity and the overall assumption that without a militia (or the arms necessary to muster), the right of the States would easily be usurped by a government employing the power of a standing and professionally trained army.
Let's keep up our guard and continue forward with this swell. If we can surf it into the Supreme Court, we can be pretty confident of Bush's appointees, at the least, ruling on the individual rights stated in our Bill of Rights!
taken to it's logical conclusion, women and blacks shouldnt vote, Beltway newspapers could be silenced and and malcontent protesters could be locked up for thier entire lives
What, you're not a Democrat now?
What I want to know is, since DC is not a state, and is a completely federal jurisdiction, can we now assume that residents of all 50 states are safe from prosecution if they carry in DC?
They cited Miller?
Hell, the 9th Circuit cited Miller in Silveira v Lockyer. I believe the 5th Circuit in Emerson cited Miller. Evereyone cites Miller as supporting their decision.
Yes. It was.
The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree, as is the case in the British government. St. George Tucker. 1803
The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it,this amendment may be appealed to as a restraint on both. William Rawle 1829.
Now, if SCOTUS will take the case and affirm...
Ron Paul tried and it got nowhere.
Exactly right. Not sure why this is so hard to understand for so many people.
It is real. Follow the links at the source and you'll be able to read the full (60 plus pages) opinion.
Not sure if there is a way to short that. You'd think with so many Circuits applying different Constitutional standards to their Citizens Rights and legal protections, a crisis would have to be resolved by the SCOTUS.
before you make any more stupid remarks.
It hasn't stopped him in the past.
Woo Woo Woo!
It's a long shot. But hope costs me nothing... ;-)
Good news and bad news. The good news: Some future SCOTUS finds that the 2nd amendment is an individual right, and that the 2nd amendment applies to the states.
The bad news: "Arms" in the second amendment is defined by SCOTUS as single-shot, muzzle-loaded rifles ... only.
The XIV Amend seems to cover just about everything. When you just read it, it doesn't actually say any of that, but under it much of modern USA came into being.
John Roberts, Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg were all on the DC Circuit I believe.
"Judge Karen Henderson dissented, writing that the Second Amendment does not apply to the District of Columbia because it is not a state."
What an idiot! Indian Reservations aren't states either but they are a part of America.