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
Sometimes I feel like a guy stranded behind enemy lines, and all I have is FR.
I agree. (As you no doubt surmised, I made my previous reply before reading this post)
It protects the ability of a state to form a militia from federal infringement. I guess that makes it a collective right, though it's really an individual right applied collectively.
"Do you believe the Bill of Rights (the first 10 amendments) limits government power or grants people rights?"
The first eight amendments protect certain rights from federal infringement. At least, that's how they were written.
"Thank you in advance for two yes or no answers."
Oops. Sorry. I didn't read ahead. Let me try that again.
"Do you believe the Second Amendment protects and individual right or a collective right?"
Yes.
"Do you believe the Bill of Rights (the first 10 amendments) limits government power or grants people rights?"
No.
How do you answer these?
Yes. But you have to agree the language used in section IV of the opinion is great dicta for a future incorporation argument, when the case arises. Also, the language virtually equating the rights conferred by the Second Amendment with that of the First is great stuff.
He believes it's an individual right to participate in a government-operated militia according to their rules with their equipment.
Took me a while to drag that out of him.
I'll bet you can't identify your argument in 60 years.
"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."
A demonstration of an individual right? You're sure about that?
OK then. Why did the U.S. Supreme Court even mention "militia"? If Miller was about an individual right to keep and bear arms, what the heck does a militia have to do with anything?
So if people start getting critical of your arguments, your fitting response is to insult them?
Huh?
I told the poster that I will go toe-to-toe with him and debate the Miller decision.
Kennedy is a strange guy.
The race doesn't always go to the swiftest, or the fight to the strongest, but that's the way to bet.
You feel comfortable with those two decisions by those two circuits? You want the U.S. Supreme Court to make a second amendment decision based on only two decisions in our favor? 70 years we've been waiting and you want to move right now -- now's the time?
I don't think so.
Yeah, I know this is late in the thread, but if anyone reads this far into the thread and knows of an HTML version of the opinion, I would greatly appreciate it. I'm in the process of converting the PDF from PDF to HTML, but this is largely a manual process. I've run it through 'pdf2ascii' to get the text, and am now in the process of encoding it with markup.
If it has already been done, I'd appreciate a pointer, so as to not duplicate effort.
Love your tag;-)
The 9th Circuit Court refused the request for an en banc rehearing of Silveira v. Lockyer.
Anyways, the dissent to which you're referring would be the minority dissent. The losing dissent. The dissent-and-25-cents-will-get-you-a-cup-of-coffee dissent.
I read the dissent. I read the Sunday comics. They both have equal weight on the decision.
Or, with Kelo as an example, everyone would then have no protection against infringement from state and local governments.
Just FYI...at one point in time, slavery was legal in EVERY SINGLE ONE of the original 13 US colonies.
If by "critical" you mean nitpicking and insinuating, then yes. But you'll note I held back.
Try Googling the decision. From the results of the search, sometimes you can then select between HTML or .pdf versions of the text.
You do realize that such dissents are sometimes referred to by the SCOTUS in their opinions? (Mainly because of the justices' clerks who have done a lot of reading on these cases and will sometimes want to insert a clever comment or two.) Yes, even in a case where it was a dissent from a case that's not immediately before the Court (but the same issue). No, it's not often, and like the pure circuit counting it's not really that important in the overall scheme of things (because it's used to bolster an opinion a justice is writing vs. his vote at conference), but your sarcastic tone isn't warranted.
On an unrelated note, you might want to consider how you're debating people. Attacking people with sarcasm and name-calling isn't going to win over many people to your point of view. I know your POV is the minority on this site, but that makes it all the more important to remember what they say about honey and vinegar.
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