Skip to comments.DC Circuit strikes down DC gun law
Posted on 03/09/2007 8:10:02 AM PST by crypticalEdited 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
Please be Wary,
In this State,
No Right to Carry.
Giuliani already enforced the New York City ugly gun law, which was much more destructive to the second amendment than the Clinton ban. He's been saying that the second amendment is about hunters for years, he recnetly said it again.
Indeed we were.
To establish that the 2nd amendment means an individual right
instead of a collective one is the big point. I am delighted the court gets it.
Exactly. And once you've established that it is an individual right against the federal government (not collective), then saying that it also applies to the states (via incorportation) just like the other amendments in the BoR is the natural course. This is an important first step. Let's hope the SCOTUS affirms.
You could end up with something like a Kelo decision for guns. No, it doesn't affect state laws. But it sure as hell influences them.
It effectively gives a federal green light to state and local abuses, depending on how narrowly the U.S. Supreme Court defines a right. States may still protect property rights. Yes. Nothing has changed there. BUT, they now know what the can get away with and you see them trying.
Incorporate the second amendment then have the U.S. Supreme Court say it doesn't protect concealed carry. Or semi-automatic handguns. Then watch the Brady Bunch go into high gear at the state and local level.
I hope it gets there and that they do. It will begin to undo a lot of mischief AND put a lot of politicians in a position where they will have to be explicit about their views.
I could call him a "faggot", but then I'd have to check myself into rehab.
I'm not well versed on the subject enough to speculate. but even gun rights organization have been reluctant to toss this thing into the realm of the federal judiciary. remember, these are the guys who affirmed McCain/Feingold, who overturned the takings clause in the 5th amendment with the Kelo decision.
Texas doesn't want NY's guy laws, and they shouldn't. But NY doesn't necessarily want Texas' gun laws either. there is a balance to be struck here.
Please see el Gato's post #437 for the link.
Now, be nice fellas--ya heah!
Because you, like too many others in the United States, like to hide behind the skirt of the Commerce Clause. Liberals and Conservatives frequently run to hide behind 'states rights' and the 'commerce clause' when it suits them and emerge to rail against it when it doesn't.
In any case, read United States vs. Lopez where the USSC held that mere possession of a gun near a school is not an economic activity that has a substantial effect on interstate commerce.
Chief Justice Rehnquist dismissed the government's argument, reasoning that if Congress could regulate something so far removed from commerce, then it could regulate anything, and since the Constitution clearly creates Congress as a body with enumerated powers, this could not be so.
That is perfectly germane to today's particular discussion that you brought up about the Commerce Clause, which ought to have nothing to do with the DC handgun ban reversal.
So knock it off about the Commerce Clause. It's all you ever talk about.
BTW, I agree with you that a pro-incorporation ruling would be desirable given the current state of things (even taking into account the risk).
Five justices defining the rights of every single citizen.
Since free speech includes nude dancing (obviously the framers's intent) then every state must allow it. Since homosexual sodomy is a U.S. Constitutional right to privacy issue, then every state must allow it. Abortion? States must allow it. No choice in the matter. You can't get away from it.
Five justices running the country. And people want those five clowns interpreting the second amendment for all of us?
Unreal. Utter stupidity.
You nailed it. For the first time ever, a federal court has stricken down a gun control law!!!!!!! I'm all atingle...
Note that they did so without incorporating the second amendment though. Since D.C. is a federal district, there was no need to incorporate because the bill of rights applies directly-- as opposed to via the 14th amendment for state laws.
Don't worry, President Rodham will replace the federal judges with her own selection and get this changed around. Then BANG.
I suppose that it's possible to open a gun store in the same DC building that the Brady Campaign operates out of.
AH! Such things as dreams are made of...
Think about it.
The Founding Fathers realized the need for the individual AND the collective right to ensure we would be able to check a tyrannical government.
What good is a collective right if the individual can be deprived of arms?
What good is an individual right if a group of such can be labeled "terrorists" or "hate groups" and oppressed accordingly?
Thank you for the best laugh I've had today!
I responded to the poster who initially brought it up. I suggest you go talk him about how it's not germane and get out of my face.
Oh, Lopez had nothing to do with interstate commerce. It dealt with a federal statute concerning local activity that could have an effect on interstate commerce. Similar to Morrison. And similarly rejected. And rightly so.
individual right = if a group of such
That is gibberish.
Well, when one speaks of individual vs. collective, it's usually meant to mean individual right vs. only collective right.
I think it's best to say that it's an individual right that can also be practiced as a group (like in case of a militia).
AH! Such things as dreams are made of...
It needs a FFL dealer named Brady to open Brady Guns
You believe in the individual right to bear arms, so do I.
Suppose someone decided that you and I combined are a "hate group" or a "danger to democracy" that needs "regulating" ?
Two good things in one day! Our part of the globe warmed up a little, and now this! Great news!!
2nd Amendment bump....
But that wasn't enough. They were still concerned. States refused to ratify the document. So they wrote a Bill of Rights to further restrict this entity.
Now, you're saying these same guys are then going to give this creation they feared the obligation of protecting their right to keep and bear arms? Are you crazy?
Your individual right to keep and bear arms is defined and protected by your state. The second amendment protects the formation of state militias from federal interference. That's according to the every single federal court in every single federal court opinion (save two).
Sheesh! A individual cannot be a group.
Actually, you said:
ORLY? Not as far as you'd like to believe that they can. I've already shown you former Chief Justice Rehnquist's findings in US vs. Lopez where the court held that while Congress had broad lawmaking authority under the Commerce Clause, it was not unlimited, and did not apply to something as far from commerce as carrying handguns, especially when there was no evidence that carrying them affected the economy on a massive scale.
Just so you know, a USSC justice that will be hearing any appeal to today's DC District Court reversal will be Samuel Alito who dissented in 'US vs. Rybar' that "in that the law under which Rybar had been convicted should be vacated, because Congress, in its lawmaking, had not made sufficient findings regarding the impact on interstate commerce clause to fully justify the court deferring to Congressional judgement that the law was authorized by the Commerce Clause". (Wikipedia -- US vs. Rybar)
Moreover, US vs. Rybar was a case where a man was convicted for possession of two unregistered machine guns. His conviction was upheld, but not by any judges currently sitting on the US Supreme Court like Alito does.
So much for the 'powers of Congress to regulate the interstate commerce of everything', huh? You get out of MY face.
Please refrain from ever using the Commerce Clause in any future FR discussion where the economy of the entire United States wouldn't be affected on a 'massive scale', please.
And my understanding is that you agreed with the 50 states...which would also, by your logic that because the most states say so, it must be true, put you in with the states that agreed with Plessy. Just admit that you are wrong. It isn't that hard.
I had been thinking of the relatively recent boogie man term, "the gun show loophole".
She is a reagan appointee orignally. If I remember correctly, both of those presidents had democratic senate & house. It did constrain them.
Giuliani could welcome the excuse of a democratic congress.
No. 50 federal court decisions that ruled a collective right vs 2 now that ruled an individual right. Maybe it's 45. I didn't do an exact count. Hell, the 9th Circuit has half of them. One day I'll look them up and list them -- who knows? There may be 55. Maybe 30. A lot.
PING PING PING PING!
It isn't possible for us to be oppressed as a group?
There is no legal prohibition actually on owning an M16 provided one meets the mostly financial requirements of the law which are open to all non-felons.
"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."
Prediction: it won't be to Virginia. That would be very unhealthy.
How about actually addressing the verdict instead of insulting people?
Next time, base your argument on the majority opinion of some case. You'll have more credibility.
Do you believe the Second Amendment protects and individual right or a collective right?
Do you believe the Bill of Rights (the first 10 amendments) limits government power or grants people rights?
Thank you in advance for two yes or no answers.
If such laws go unchallenged, they remain in force. Given that the governments (federal and local in these two examples) had already acted, what was the downside in taking them to court?
Texas doesn't want NY's gun laws, and they shouldn't. But NY doesn't necessarily want Texas' gun laws either.
Are not the citizens of both states entitled to the same RKBA, in your understanding of the Constitution?
The case that stands, on a procedural basis, for an individual right interpretation of the second amendment?
you'll go toe-to-toe to defend Miller?
If you don't agree that Miller demonstrates that the Second Amendment deals with an individual right then you are either an uneducated windbag, a shill or both.
And I'm betting you can't identify my argument within 60 seconds.
"A question that needs to be asked and answered is, by the terms of the Second Amendment an individual has the right to bear arms. Then why does a person need a conceal carry permit to be able to carry a weapon concealed?"
Exactly. We scored a win on the "keep" now what about the "bear"? This is the underlying reason why some gunnies refuse to get the permits and carry openly instead.
Your numbers game doesn't mean much. The Court will not base its decision primarily on that. Even if only two circuits have adopted the "individual right" view, the Court can still side with those two circuits. It has done so in the past on a variety of issues. Also, if you're going to play the circuit game, then historically the DC Circuit carries a lot of weight with the Supremes. The 9th Circuit, well... let's just say not so much.
Your picture is proof of one advantage Rudy has over Hillary.
He has nicer legs.
Alito is now on the US Supreme Court. The other judges aren't. Let's give it awhile and see where this DC reversal ends up.
Then we'll see who wins and who loses.
and the dissent in the 9th circuit's en banc review of Locklear was dead on point wrt the second amendment and the effect of ruling it a collective right on other cherished individual rights.
paulsen is a statist douchebag..don't bother.
watch how he tries to weasel out of my very pointed inquiries to him
he's out of his league in this discussion but just too inbred to realize it.
the clock is ticking...what is my argument?
Kelo is a good example - one state passed and acted upon a law, a homeowner challenged it - HE LOST. now with that precedent in place, states all over the country are doing the same thing Connecticut did. its happening all over the place now.
my point is - this decision looks good to everyone here, because the pro-2A side won. and clearly the bounds of this case justified this decision, I am all in favor of it.
but there are alot of twists and turns to the guns laws across all 50 states - carry laws, guns for felons, guns for people with orders of protection against them, some americans want to own automatic weapons, and on and on. do we let the federal judiciary decide all aspects of this? because once they do, everyone gets those laws, in every state.