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
Try reading the ruling before opening your mouth.
Do you even know who ruled on this case?
Perhaps a more careful reading of law might be in order, before you draw legal conclusions.
At least for today, this case stands as law, in DC. Might be gone tomorrow, but today, it is law.
He's right that it can be overturned by the Court of the Appeals for the DC Circuit en banc. He's laughably wrong that it can be simply overturned by the 4th Circuit.
No, not if I am understandng the decision correctly.
The court's opinion specifically addressed only those parts of the D.C. gun law which required all guns to be kept unloaded and made non-functional by partial disassembly or some other approved means of rendering it inoperable, those which made it illegal to carry a gun even between rooms in a home, and to those which required registration of handguns but disqualified guns for registration if they had not been previously registered before a certain date in 1975.
IOW, under the law that was overturned no one in the D.C. could legally possess a registered but functioning handgun even in his or her own home, and if you legally possessed a nonfunctional registered handgun you couldn't legally carry it anywhere, not even between rooms of your home. If this 3 member panel is upheld by the full panel of the circuit, those parts of D.C. law gun will be thrown out unless the USSC agrees to hear an appeal by the district and reverses the circuit court.
But to answer your question directly, if I am reading the majority opinion correctly no other parts of the D.C. gun law will be affected. That means that the D.C. can still require all guns to be registered, and carrying guns outside the home can still be prohibited. The decision doesn't go far enough by any means, but it's a start for forcing the D.C. to respect it's residents' 2nd Amendment rights. If my understanding of the decision is incorrect, which it may well be, I hope someone better qualified to understand it will correct my mistakes.
"Yes it can. It can be overturned by the DC Court of Appeals en banc or by the 4th Circuit."
When you discover that you are in a hole, stop digging.
Thats great! Not to be a pain in the butt, but how confident would you say you are of this? 75%? More?
"The individual right to keep & bear arms existed before the formation of the country. After fighting an 8 year war against what was perceived to be a tyrannical government, yet one that respected these rights until the outbreak of war, would the people have then voluntarily limited these pre-existing rights upon ratification of the Constitution/BoR to a new government?"
It's quite satisfying to see a court finally pose this question and answer it in the only possible logical outcome. If/when the SC gets this and/or other circuit case, they will have to deal with the same exact question.
"As we have said, the leading Second Amendment case in the Supreme Court is United States v. Miller. While Miller is our best guide, the Supreme Court’s other statements on the Second Amendment warrant mention."
Hah! I was right after all. See? If you would have followed your own advice, you wouldn't look like an idiot.
WOW! And then some.
Robert, I think that your perception of who looks undereducated here is a bit flawed.
Perhaps you might read some more, before you speak again?
Are the DC Police aware of it?
BTW, for a guy who personally has little or no interest in guns, Rush gets the second amendment just fine. I wish the politicians would!
You are the one who has been making stupid assumptions about the ruling without even reading it, Sir. You've demonstrated that quite well in your past few posts. Furthermore, you clearly have no understanding of the federal circuits. I'll give you points for the number of times I've had to wipe off my computer screen due to the laughter your posts have caused (I'm drinking a soda), but that's all.
Thank you God for giving us this one right, and reaffirming it. With this we can keep the other rights.
Keep reading. They pretty much decimate your "collective rights" BS and give the proper interpretation to Miller.
I think you got it right. Not being a lawyer I can't make out some of the arcane writings of the judges, but they seem to believe that only the possession of personal type weapons like rifles and pistols is protected by the 2nd Amendment.
you can own a gun in your home in NY - I don't see that this decision provides for blanket carry permits, I also don't see that it means that if someone has a carry permit in Alabama, that its automatically good in NY.
this is the correct decision - complete prohibition of lawful gun ownership violates the 2A. don't read more into it then that.
While this is cause for celebration, the fight ain't over yet. Keep those prayers warm... ;-)
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