DC Circuit strikes down DC gun law

How Appealing Blog ^ | 03/08/2007 | Howard Bashman

[cryptical]

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

[jmc813]

I will say that this is about the best thing that could happen for you Rudy people. If this works out the way it potentially could, I could see more gun owners possibly willing to overlook his gun-grabbing. Not me, personally, but some.

[ctdonath2]

There's a difference between supplying something to a group because it's too expensive/awkward for common individual ownership, vs. prohibiting individual ownership thereof.

[ctdonath2]

I haven't yet read the opinion

Then read the opinion before spreading further confusion.

[NinoFan]

They did have to hold that the 2A is an individual right against the Federal Government to reach their conclusion. So, it's certainly a boost for the individual rights view.

You are correct that they didn't reach the incorporation question. There was no reason for them to do so in this case.

[383rr]

This has to be the best news I've heard, in a looooooooong time.

[robertpaulsen]

So you admit they WERE referring to Miller. Which is what I said from the beginning.

Idiot, wasting my time.

[ctdonath2]

or whether or not they are in a "militia".

That is the part he will have great trouble with, being the core of his arguments.

[jmc813]

the current system of state based laws, works pretty well in this country - generally speaking. open up this can of worms amongst the federal judiciary, and who know what the hell they will send the states way as an end result.

Right now, I'm cautiously optimistic about how this would fare in the SCOTUS. I'm not positive that it will go our way, but I do think that now might be the best time to give it a try. We might not have this opportunity again in our lifetimes.

[P-Marlowe]

John Sununu picked David Souter.

Bush appointed him. Do you think Rudy is more likely to put more Souters or more Scalia's on the bench? I think the former.

I don't trust him any more than his ex-wife and kids trust him. They know him a lot better than we do.

For the life of me I don't know why so many conservatives have jumped on the bandwagon for this two-timing cradle-robbing adulterous cross dressing gun-grabbing abortion proponent. The best reason seems to be "well, he can win." Well that's the excuse we had for voting in Schwartenegger instead of McClintock. We thought we were voting for a "conservative" or at least someone who wasn't a complete Gray Davis liberal. We ousted a wimpy Gray Davis and we got a buff Gray Davis out of the deal. We still have Gray Davis. Our state is still going to hell in a handbasket. The government is still out of control. Liberalism is worse now than before Schwartenegger took power. As far as I'm concerned we still have Gray Davis.

If we put our efforts behind Giuliani, I'm convinced that we will end up with nothing more than Hillary in drag.

There's somebody better. Anybody.

[The KG9 Kid]

"... 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."

Presuming those laws exist, you mean.

I take it that at this very moment an FFL holder still operating inside of Washington DC could make a Title 1 transfer to a resident of the district. If DC is silent on various firearms laws because they believed all these years that their outright ban (now overturned) caused those laws to be moot, then perhaps a citizen of DC could find themselves walking out of a gun store gun in-hand via 'instant check'. To answer R. Scott's question, I'm not convinced it matters one bit whether the police are aware of the repercussions of today's reversal.

That's why I posted in the first replies in this thread that if there is one FFL dealer still operating in DC, then that dealer ought to and should be able to sell a handgun to a citizen of the District of Columbia. If I were a Freeper living in the city of Washington DC, I would be inquiring this evening as to where I can buy a firearm tomorrow simply because my Federal Court says I can. I would presume it's also legal to acquire one from an out-of-state family member without going through an FFL, just like Sarah Brady did for her son.

I suppose that it's possible to open a gun store in the same DC building that the Brady Campaign operates out of. You could probably host a gun show within sight of Sarah Brady's office in Washington DC.

If the District Court of DC has ruled that the citizens of the district have rights to keep and bear arms, that also means that there must be some provision by which citizens of DC can acquire firearms, correct? To prevent this would be against today's reversal. If the cops tried to step in, now they're violating the citizen's 4th Amendment rights and they could have their asses sued off.

If a court reversed a ruling on RU-486 or 'medical marijuana' in a given locality, how long do we think that liberals would wait before they sought to fill their cupboards with abortion pills and visited a doctor to get a prescription for weed?

Why should a conservative citizen of Washington DC wait for a handgun a minute longer than a liberal would wait for an abortion? The court has spoken.

[NinoFan]

You have demonstrated that you have little knowledge of the law in this area. Maybe you should quit relying on the words of others and do a bit more studying and research.

[Dead Corpse]

So you admit they WERE referring to Miller. Which is what I said from the beginning.

This court got the correct interpretation for Miller though. Not your idiotic ramblings.

Wasting time? That is all you do here. I'm not the only one noting it either. You are DEEPLY in the minority.

[Dead Corpse]

Yep. That and that States are free to infringe whatever the hell they want. Those two aspects of his arguments are the worst as they are so easily debunked.

The Second protects and Individual Right. A Right protected for ALL US citizens, regardless of where in the US they are.

As some of us have been saying for decades now...

[robertpaulsen]

I got it from post #197. He was wrong.

[Domandred]

There's a difference between supplying something to a group because it's too expensive/awkward for common individual ownership, vs. prohibiting individual ownership thereof.

This is correct. Further in the decision officers and dragoons of the militia were talked about. These were generally the more affluent of society at the time so had more money. Conversly they were required to outfit themselves with more gear. A Dragoon for example was to provide his own horse, sabre, two pistols, and other effects.

While a horse isn't a tank the point was that the more financial means you had, the more equipment you were to provide for yourself.

I'm not saying that the militia act prohibited anything, only saying that it stated specifically what a militia member was to supply themselves and what was to be provided by the military for militia use.

[brooklin]

"YOU RUDY HATERS ALWAYS FIND A WAY TO ATTACK HIM NO MATTER WHAT THREAD YOU'RE ON!!!! "



I don't give a hoot about his politics, I don't care for him because his first wife was his cousin.

Kinda gives me the creeps, if you know what I mean.

[Dead Corpse]

One or two hardliners might dissent, but because of the well documented nature of this decision, I think a majority would carry it.

[NinoFan]

Idiot, wasting my time.

Let us review: 1. You got the significance of this court wrong. 2. You made an erroneous comment concerning who could overturn this Court. 3. You jumped to conclusions concerning the majority opinion based on a few lines from the dissent you had read in a news article. 4. You don't seem to understand the Miller case at all. In short, who's the real idiot here?

[patton]

Sure, I talked to my lawyer. She say, "The state of NY has a bigger lawyer budget than you do."

BUT - if the USSC rules NY law an infringement of my rights, I will certainly sue for past damages. In spades.

[Dead Corpse]

While a horse isn't a tank the point was that the more financial means you had, the more equipment you were to provide for yourself.

Bill Gates and Opra would bring Aircraft carriers... ;-)