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
The same thing that makes them useful to criminals makes them useful for little old ladies protecting themselves against criminals as well: They are small, easy to operate, and powerful enough to do the job. Self-defense is important as well, and I think the framers understood that.
That was talked about actually in the decision around page 50 to 54 (I think it was without looking it up again) when it was talking about the equipment required for milita.
I can't remember if they were citing previous rulings or making their own comments.
The basic impression I got was that small arms (rifles, pistols etc) that could be used by an individual were covered, but larger arms were not as those were to be provided by the actual military, BUT for militia use.
Thanks for the correction. :-)
I just heard This on the radio. Great news!
There's promise there, but the fight ain't over yet.
Bad news for the left, the Brady bunch...and over zealous politicians in general. Might not have to vote from the roof tops after all...
5.56mm
Bush II's legacy, despite a few setbacks, will be reigning in the activist courts.
Sometimes I'm frightened when DU and FR are in accord over a subject. Happens from time to time, but it always makes me take a second to check my premises. :-)
"It was not the intent of the founders to force the states to apply the federal bill of rights.
Yes. It was."
Tell it to the courts.
“…the right there specified is that of ‘bearing arms for a lawful purpose’. This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but as has been seen, means no more than it shall not be infringed by Congress.” - US v Cruikshank
"We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities [116 U.S. 252, 265] and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state. " - Presser v Illanois
"“it is now well settled that the amendments to the Constitution of the United States of March 4 1789, are all restrictions, not upon the states, but upon the United States.” - Hill v State of Georgia
The first two are US Supreme Court decisions...that was the state of the law until the Courts began to read and incorporate intent of the 14th.
With the difference being that the 5th circuit ruled against Emersson. The "individual right" interpretation in Emerson *could* be said, and has been by some, to be dicta. Not so in this case, the individual right interpretation is central to the ruling.
If the Supreme Court won't hear and resolve this clear difference between the circuits, they should all be impeached, and new set of Justices brought in who will do their job. (Yea, I know, not doing their job is not generally considered grounds for impeachment. But it should be! It's certainly not "Good Behavior".
Or, be like Bobby and keep being wrong...
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." 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.
Sorry, thanks.
The the article said, "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."
Leaving me, therefore, to conclude that they considered DC a "state" for this ruling. (ie., the ruling applies to the states, we reject the argument that the ruling doesn't apply to DC, ergo, DC is a state).
That much is very obvious.
... but I assume they said the second amendment applies to the states?
No. It said it applies as a protection for an Individual Right, regardless of which State or District they live in or whether or not they are in a "militia".
Your wish is my command, m'lady.
The Brady Bunch's wailing on the ruling
And finally The Ruling Itself Right from the uscourts.gov site.
OUTSTANDING!!!
Yes, I'm munching on my humble pie as we speak.
I'll no longer be able to post that the federal courts have ruled 50-1 in favor of the collective right over individual rights. I'll have to use 50-2 from now on.
"Once this is upheld - and it can't be overturned without calling into question ... "
Yes it can. It can be overturned by the DC Court of Appeals en banc or by the 4th Circuit.
Uh, overturned by the 4th Circuit? Where are you getting that from?
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