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
Groan.
this is the correct decision - complete prohibition of lawful gun ownership violates the 2A. don't read more into it then that.
There is a lot more to be read into. The whole "individual right" thing can have major ramifications.
These items were not mere antiques to be hung above the mantle. Immediately following the list of required weapons purchases, the Act provided that militiamen “shall appear so armed, accoutred and provided, when called out to exercise, or into service . . . .” Id. (emphasis added).
I could get into the details of why it's nice to have a pistol in CQB, having been a troop who was formally trained and issued handguns as backups. Handguns are useful secondary tools for a soldier, when your primary weapon fails, but nothing remotely as useful as a long gun. For a thief or criminal, on the other hand, your primary platform would be a concealable weapon. A soldier would only rarely need to conceal a weapon, and only doing very specific functions.
In other words, the military uses sidearms because they fulfill a useful niche, in certain cases. For criminals, it's pretty much an essential part of their arsenal. When you're looking for someone to mug, it's hard to sneak around with a rifle without attracting attention.
Anyway, my above statement was pure speculation. I don't know for a fact how the Founding Fathers would feel. I'm just imagining what arguments they may have found persuasive, given their reasoning for the 2nd. That it all, and I certainly could be wrong.
I personally enjoy owning my H&K USP .45. She's a beaut. Still, I'd probably be willing to part with her, if the 2nd Amendment were interpreted to mean protection for military grade arms, like machine guns, assault rifles and no restrictions. I can do just fine defending my house with a Mossberg 590 instead. Or a M240G. ;-)
Happy hour is going to be fun tonight. I'll have the entire bar discussing the 2nd Amendment by the time I leave.
(Sings) It's a beautiful mor.... err, afternoon!
That's a good point too, and I don't deny the logic there. We live in a very different world than they did, and things like that probably weren't on their radar.
But it can be overturned by the full court if they choose to hear it.
ask Ted Olson, he'd be picking the judges in that administration.
I have a bit of an issue with your interpretation, but whatever.
Someday, I will win the lotto by suing the State of NY for violation of my rights.
I hope. When I get time.
(I have a VA CCW, and a home in NY. Since I am not a NY resident, I can't take my guns to my house in NY. I am also barred from applying for a NY CCW, as a non-resident. This is a violation of my rights in NY).
Interesting. Well, I stand corrected. I still want a M240G, though. I've got sector sketches already drawn up for my rooftop bunker. ;-)
and janice rogers brown (among others) is there now as I recall.
Sorry didn't mean to finger you, it was just a figure of speech. The good news is very probably the whack job doesn't know how ineffective shoulder fired full auto really is. The bank robbery in LA is often cited, but the death toll was dead robbers only, for all the puffing about the 100s of rounds fired. My point is full auto doesn't make the difference, the person does.
You are correct. I thought this decision was reached by the District of Columbia Court of Appeals, which is roughly equivalent to a state supreme court in the District of Columbia.
It wasn't. It was reached by the United States Court of Appeals for the District of Columbia Circuit. My bad.
In DC of course....where people will be able to lawfully protect themselves now.
Well, happy to say you are wrong. Rush was talking about this just this morning. It is a real decision.
No it is not, this was the DC appeals court. The next step is either an en banc hearing before the full DC Circuit Court, or the Supreme Court of the United States. If it's the former, then the next step after that is the latter.
There's promise there, but the fight ain't over yet.
Not over by any means, but those of us who love liberty get so little to cheer about that I'm going to nurse this one for all its worth.
Sorry Flashbunny but I don't hate Rudy I just want him to admit that he & the rest of the govt. has to follow the law just like I do & that includes the Constitution & the bill of Rights including the 2nd Amendment.
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