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DC Circuit strikes down DC gun law
How Appealing Blog ^ | 03/08/2007 | Howard Bashman

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


TOPICS: Breaking News; Constitution/Conservatism; Culture/Society; US: District of Columbia
KEYWORDS: 2ndamendment; banglist; devilhasiceskates; districtofcolumbia; firsttimeruling; flyingpigs; frogshavewings; giuliani; gunlaws; hellfreezesover; individualright; rkba; secondamendment; selfdefense
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To: cryptical

51 posted on 03/09/2007 8:27:51 AM PST by Vaquero ("An armed society is a polite society" Robert A. Heinlein)
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To: azhenfud
HOLD EVERYTHING!

I notice when you click on the source, instead of the blog's URL, you get a freerepublic url.

Makes me mighty suspicious that maybe we've been had.

52 posted on 03/09/2007 8:28:09 AM PST by basil (Exercise your Second Amendment rights--buy another gun today.)
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To: longtermmemmory
BOTH have stood for this as COLLECTIVE right.

Eh... they were WRONG.

"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

53 posted on 03/09/2007 8:28:20 AM PST by Dead Corpse (What would a free man do?)
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To: cryptical

Going out to hunt some of those flying pigs.


54 posted on 03/09/2007 8:28:44 AM PST by AU72
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To: basil

Nope, check out Instapundit.


55 posted on 03/09/2007 8:28:47 AM PST by Pyro7480 ("Jesu, Jesu, Jesu, esto mihi Jesus" -St. Ralph Sherwin's last words at Tyburn)
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To: basil
http://instapundit.com/archives2/003206.php
56 posted on 03/09/2007 8:29:07 AM PST by Pyro7480 ("Jesu, Jesu, Jesu, esto mihi Jesus" -St. Ralph Sherwin's last words at Tyburn)
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To: MrB

See the second quote/paragraph on my FR profile page, for an explanation of what "well regulated" is about. Great for making Lefties sputter.


57 posted on 03/09/2007 8:29:19 AM PST by FreedomPoster (Guns themselves are fairly robust; their chief enemies are rust and politicians) (NRA)
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Once in a while...reason prevails.

May those unhappy about this choke on their tofu!!!


58 posted on 03/09/2007 8:29:41 AM PST by Neo-Luddite
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To: cryptical
Hooray!

This puts an even more cheerful face on what was already a good day.

59 posted on 03/09/2007 8:29:42 AM PST by snowsislander
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To: ArrogantBustard
If this holds up, I see a crime-surge in Maryland's future.

You're absolutely correct. With the citizens now able to be armed in DC, the thugs will now be a-scared, so they'll have to move on to other places.

60 posted on 03/09/2007 8:30:07 AM PST by CT-Freeper (Said the perpetually dejected Mets (and, yes, sometimes Jets) fan.)
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To: from occupied ga
And Romney and McCain also

Nah, not Romney, not since he's been freed from Masachusetts political calculations.

61 posted on 03/09/2007 8:30:23 AM PST by NeoCaveman (Hillary Hugo Chavez wants to "take those profits" away from you, for the common good)
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To: Alberta's Child

....along with a few Freepers.


62 posted on 03/09/2007 8:30:40 AM PST by labette (There is a way that seems right to a man, But its end is the way of death.)
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To: basil
Looks like someone fudged the URL.

Try this one.

63 posted on 03/09/2007 8:30:52 AM PST by Dead Corpse (What would a free man do?)
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To: basil
http://howappealing.law.com/
64 posted on 03/09/2007 8:31:08 AM PST by Yo-Yo (USAF, TAC, 12th AF, 366 TFW, 366 MG, 366 CRS, Mtn Home AFB, 1978-81)
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To: Uncledave
I think Rudy has a unique political opportunity to say he respects the ruling.

Except that those of us who know his well-documented track record will know that he's full of crap. With his proud and blatant violation of the 1996 Federal immigration reform law -- which was upheld in the face of multiple legal challenges against it by the Giuliani administration -- Giuliani permanently forfeited any credibility he ever had when it comes to "respecting" a court ruling of this sort.

65 posted on 03/09/2007 8:31:22 AM PST by Alberta's Child (Can money pay for all the days I lived awake but half asleep?)
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To: FreedomPoster

Yes, I understand what "well regulated" means in the Constitutional context.

However, I was referring to "dumbass leftists" who, in the arrogance of their own superiority for simply BEING "liberals", think that their contemporary interpretation of any words in the Constitution is actually what it means.


66 posted on 03/09/2007 8:31:58 AM PST by MrB (You can't reason people out of a position that they didn't use reason to get into in the first place)
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To: cryptical
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.

Overtunring the decision en banc would almost certainly result in Supreme Court review.

67 posted on 03/09/2007 8:32:21 AM PST by Labyrinthos
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To: cryptical
The decision is here at http://pacer.cadc.uscourts.gov/docs/common/opinions/200703/04-7041a.pdf
68 posted on 03/09/2007 8:32:27 AM PST by snowsislander
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To: Seruzawa
So then we could reinstitute slavery in the District of Columbia?

Well, that's silly, not all states had a significant number of slaves.
But I would think that rescinding the right to vote would be a good start.
The founders did not grant the den of thieves the privilege of voting for very good reasons.
Re-electing a conviced felon as mayor just verified it...

69 posted on 03/09/2007 8:32:37 AM PST by Publius6961 (MSM: Israelis are killed by rockets; Lebanese are killed by Israelis.)
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To: basil
No. 04-7041

SHELLY PARKER, ET AL.,
APPELLANTS
v.
DISTRICT OF COLUMBIA AND
ADRIAN M. FENTY, MAYOR OF THE DISTRICT OF COLUMBIA,
APPELLEES

70 posted on 03/09/2007 8:32:53 AM PST by michigander (The Constitution only guarantees the right to pursue happiness. You have to catch it yourself.)
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To: lakeman
Do you live around here? If you did, it would be obvious. In the off-chance that you don't, here are the facts of life:

1) Washington, DC is a Federal District. It is not a part of any state, and has its own government, subject only (and directly) to the US Congress.

2) Currently, Washington DC city ordinance effectively prohibits the citizen ownership of any firearms. Even long guns must be stored disassembled.

3) Washington, DC has a very high crime rate. The surrounding areas of Virginia (that's one of the 50 States) and Maryland (another of the 50 States), have lower crime rates.

4) Virginia has a "shall issue" concealed carry law, and State-level preemption of local gun ordinances.

5) Maryland has a "we won't issue unless you're politically connected" concealed carry law; as well it bans the ownership of a variety of guns that it calls "assault weapons"

6) Prince George's County and Montgomery County Maryland have higher crime rates than Arlington County and Fairfax County Virginia.

These are simple statements of fact; data upon which to base one's reasoning.

The court decision will likely make citizen gun ownership in Washington, DC much easier. How do you suppose Washington, DC's 'private sector' criminal class, which has somehow managed all these years to acquire guns, react to the peacable citizens beginning to arm themselves?

71 posted on 03/09/2007 8:33:28 AM PST by ArrogantBustard (Western Civilisation is aborting, buggering, and contracepting itself out of existence.)
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To: goodnesswins
IPredictCrimeWillGoDOWN!!!!

Where?

72 posted on 03/09/2007 8:34:05 AM PST by ArrogantBustard (Western Civilisation is aborting, buggering, and contracepting itself out of existence.)
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To: cryptical

Quick, duck ...pigs are flying!


73 posted on 03/09/2007 8:35:30 AM PST by mr_hammer (Pro-life, Pro-gun, Pro-military, Pro-borders, Limited Govn't will win in 08!)
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To: ArrogantBustard

And how much will the left twist themselves in absolute knots trying NOT to attribute the crime drop to the citizens being able to defend themselves?


74 posted on 03/09/2007 8:36:10 AM PST by MrB (You can't reason people out of a position that they didn't use reason to get into in the first place)
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To: cryptical; Jaxter
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).

Rest easy, Patriots of Lexington and Concord, someone still understands.

Jaxter, we were talking along those lines a few days back, no?

75 posted on 03/09/2007 8:37:15 AM PST by NonValueAdded (Prevent Glo-Ball Warming ... turn out the sun when not in use)
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To: NonValueAdded

BUMP!


76 posted on 03/09/2007 8:38:29 AM PST by Publius6961 (MSM: Israelis are killed by rockets; Lebanese are killed by Israelis.)
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To: ArrogantBustard

I agree with you, crime around the DC area will go up if those areas have gun bans in place, but, ya just gotta be a little clearer (you know what you mean...some of us don't).


77 posted on 03/09/2007 8:38:44 AM PST by Edgerunner (Better RED state than DEAD state)
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To: MrB

I predict exploding heads in the Washington comPost editorial offices ...


78 posted on 03/09/2007 8:38:58 AM PST by ArrogantBustard (Western Civilisation is aborting, buggering, and contracepting itself out of existence.)
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To: justshutupandtakeit; Dead Corpse
To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms.
79 posted on 03/09/2007 8:39:15 AM PST by jmc813 (Rudy Giuliani as the Republican nominee is like Martin Luther being Pope.)
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To: NeoCaveman
Nah, not Romney, not since he's been freed from Masachusetts political calculations.

Has he said anything on this? I'm going by his actions as governor of Ma.

80 posted on 03/09/2007 8:39:29 AM PST by from occupied ga (Your most dangerous enemy is your own government)
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To: ArrogantBustard

You'll see "it was dropping anyway" or something like that.


81 posted on 03/09/2007 8:39:50 AM PST by MrB (You can't reason people out of a position that they didn't use reason to get into in the first place)
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To: Edgerunner

That's why I specified MARYLAND ... the thugs would be well advised to avoid the lovely Commonwealth of Virginia.


82 posted on 03/09/2007 8:40:32 AM PST by ArrogantBustard (Western Civilisation is aborting, buggering, and contracepting itself out of existence.)
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To: cryptical
AWESOME!!!

Will this now go to the SCOTUS? I gotta say, I love our chances. I just hope Kennedy doesn't look to the UN or other foreign governments for guidance!

83 posted on 03/09/2007 8:40:40 AM PST by KoRn (FRED THOMPSON FOR PRESIDENT!)
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To: basil; All

Here's the decision. Go to page #4. "WE REVERSE" is hugh!

http://pacer.cadc.uscourts.gov/docs/common/opinions/200703/04-7041a.pdf


84 posted on 03/09/2007 8:41:28 AM PST by azhenfud (The fool hath said in his heart, There is no God.)
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To: Pyro7480; Dead Corpse; Yo-Yo

With all my might, I'm hoping that y'all are correct!


85 posted on 03/09/2007 8:41:38 AM PST by basil (Exercise your Second Amendment rights--buy another gun today.)
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To: cryptical
Its more than ground-breaking. Its mean EVERY gun control law that inhibits or prevents people from exercising their right of self-defense is on its face, unconstitutional. Every gun control law would have to meet the same kind of standard that laws affecting freedom of speech must and under such a standard very few of the 30,000 laws on the books could pass constitutional muster. So if a total ban on handguns is unconstitutional, I think even less restrictive laws fail that test if they in any way impair an individual's fundamental right to self-defense. So the U.S Supreme Court may finally have to adress just how broad the scope of the Second Amendment is and my view its very broad with respect to that individual right it enshrines - not just for the residents of DC but for ALL Americans.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

86 posted on 03/09/2007 8:41:44 AM PST by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives In My Heart Forever)
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To: from occupied ga

Well, he has joined the NRA since then.


87 posted on 03/09/2007 8:41:52 AM PST by NeoCaveman (Hillary Hugo Chavez wants to "take those profits" away from you, for the common good)
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To: cryptical

Hope it stands up on appeal. Given the history of that circuit, it probably will not.

http://www.youtube.com/watch?v=j73SsNFgBO4


88 posted on 03/09/2007 8:41:54 AM PST by Dick Bachert
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To: ArrogantBustard
I predict exploding heads in the Washington comPost editorial offices ...

The same comPost that once published anti-gun editorials for 190+ days in a row.

89 posted on 03/09/2007 8:42:15 AM PST by from occupied ga (Your most dangerous enemy is your own government)
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To: cryptical; Joe Brower; traviskicks; Admin Moderator; Sidebar Moderator

If this is indeed true, I think this belongs in the Breaking News sidebar.


90 posted on 03/09/2007 8:42:17 AM PST by jmc813 (Rudy Giuliani as the Republican nominee is like Martin Luther being Pope.)
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To: basil
"HOLD EVERYTHING!

I notice when you click on the source, instead of the blog's URL, you get a freerepublic url.

Makes me mighty suspicious that maybe we've been had."

I'm sure you're right.

That's just impossible in D.C. or anywhere else in the 'Land of the Flee and the Home of the Blame'.

91 posted on 03/09/2007 8:42:33 AM PST by GourmetDan
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To: NeoCaveman
Well, he has joined the NRA since then.

Oh well that means he's solidly pro-gun now LOL

92 posted on 03/09/2007 8:44:54 AM PST by from occupied ga (Your most dangerous enemy is your own government)
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To: All
Here's a link to a pdf of the Ruling.
93 posted on 03/09/2007 8:45:04 AM PST by Dead Corpse (What would a free man do?)
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To: Dead Corpse
The Bill Of Rights is only illustrative. It contains a limited number of examples but the Tenth Amendment makes it clear the people retain their rights regardless of whether or not they are included in the Nine listed in the Constitution.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

94 posted on 03/09/2007 8:45:30 AM PST by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives In My Heart Forever)
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To: cryptical

Bttt!


95 posted on 03/09/2007 8:45:43 AM PST by Inyo-Mono (If you don't want people to get your goat, don't tell them where it's tied.)
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To: goldstategop

This puts the practice of Police Departments deciding who can get a gun on par with Police Departments deciding what is fit to print.


96 posted on 03/09/2007 8:47:52 AM PST by AU72
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To: cryptical
PDF of the ruling has been posted here! This is unbelievable!
97 posted on 03/09/2007 8:48:24 AM PST by jmc813 (Rudy Giuliani as the Republican nominee is like Martin Luther being Pope.)
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To: dcwusmc

Yo! Check this out!


98 posted on 03/09/2007 8:49:35 AM PST by jmc813 (Rudy Giuliani as the Republican nominee is like Martin Luther being Pope.)
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To: basil
Reading the pdf now. Got a meeting from 11 to 12, but I'll drop it to my laptop and read it there if I have too...

Looks good so far. I'm about 10 pages in on a 75 page document.

99 posted on 03/09/2007 8:49:39 AM PST by Dead Corpse (What would a free man do?)
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To: domenad

No the 5th circuit ruled the same a while ago. The DC Circut is unusual in that the legal community considers it the SCOTUS jr.


100 posted on 03/09/2007 8:49:44 AM PST by Colorado Mike (Lord, help me be the Conservative my enemies think I am.)
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