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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: Andrew Byler

Current Federal law prohibits the sale of newly manufactured fully automatic weapons, so now we have a limited and aging supply of NFA guns. This is clearly contrary to the "well-regulated" provision of the 2nd Amendment. It is impossible to characterize a militia which is incapable of carrying out its mission as "well-regulate." The Constitutionally defined missions of the militia according to Article 1 Section 8 are to a) enforce the laws of the US b) suppress rebellions and c) defend against foreign invasion. If the militia was going to actually defend against foreign invasion full auto weapons would be required, and are now, no where near as widely available as is realistically needed to perform the mission.


651 posted on 03/09/2007 5:33:34 PM PST by RKV ( He who has the guns, makes the rules.)
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To: oceanview

" because once they do, everyone gets those laws, in every state."

Not exactly. The states could still have stronger protections than the minimum that the Court reads into the 2A. State constitutions can (and often are) read by their state supreme courts to have more protection of rights than the federal Constitution.

Kelo was wrong because it essentially eliminated any REAL check on eminent domain by the federal courts (Despite what the Constitution says on the matter.) At this point, there is NO check by the SCOTUS in the area of the 2A, so any improvement in that direction would be a good thing. At this point, I don't think the Kelo fears are justified.


652 posted on 03/09/2007 5:36:26 PM PST by NinoFan
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To: NinoFan

I agree with you there - that's where this is going to end up - it remains with the states, with a federal "don't cross this line" minimum protection in place.

how the SCOTUS crafts this, is going to be interesting. I wonder if anthony kennedy was a part of any decisions on 2A while he was on the circuit court.


653 posted on 03/09/2007 5:42:41 PM PST by oceanview
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To: oceanview

It is possible that the good guys could lose at the SCOTUS. I think Alito, Roberts, Thomas and most likely Scalia are on board to at least some extent, but Kennedy has a very interesting idea of liberty. He's a cherry picker when it comes to constitutional rights. I wouldn't be at all surprised to see him side with the libs on this one. Despite how many Democrat(ic) Congressmen vote on the issue, I expect Souter, Stevens, Ginsburg, and Breyer to come out strongly against the 2A. Will Kennedy be able to stand up to the NYSLIMES, WPOST, etc? We shall see.

A big sign will be how he votes on the PBA case. Yes, they are different issues, but given the fact that he wrote a strong dissent last time, he should be ready to overrule Carhart. The key issue is how stable and sure of himself he is at this point in time. If he doesn't overrule Carhart, and either votes to strike down the PBA ban or writes some garbage that guts it in practice (if not in theory), then we're in trouble. We'll never get a strong "conservative" opinion out of him if he's not even willing to stick to his very strong views of seven years ago.


654 posted on 03/09/2007 5:50:49 PM PST by NinoFan
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To: Seruzawa

Using the same logic in the majority opinion, i.e., the right to bear arms existed prior to the Constitution, and realizing that the District of Columnbia was once part of Virginia and Maryland prior to being created, then the right to bear arms still belongs to the residents of D.C. despite the fact it is not a state. The minority idiot judge was grasping at straws with her opinion, IMO.


655 posted on 03/09/2007 5:51:21 PM PST by KAUAIBOUND (Hawaii - paradise infected with left-wing cockroaches and centipedes)
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To: robertpaulsen; bnelson44

"Perhaps the Democrats would be wise to take the issue off the table politically by passing some sort of federal legislation guaranteeing American citizens the right to own guns."

It's not that far-fetched of a scenario. My (Democratic) party wants to win. Period. I think the leadership would be willing to toss the gungrabbers overboard if doing so was seen to be a key toward achieving that end. Especially if it were looking like the gungrabbers were about to lose in the courts anyway. Ultimately it boils down to what the gungrabbers are bringing to the political table. These days it's precious few votes.

There are several elected Democrats who are pro-gun. Two Virginia examples, Sen. Webb and former Gov. Warner come to mind. In Virginia, it's usually the Republicans in the State Senate who prevent forward movement on gun rights issues.


656 posted on 03/09/2007 6:03:15 PM PST by RKBA Democrat (Lord Jesus Christ, Son of God, have mercy on me, a sinner!)
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To: Disambiguator
He has nicer legs.

Did you know you have to go into rehab if you use the word faggot?

657 posted on 03/09/2007 6:06:05 PM PST by P-Marlowe (LPFOKETT GAHCOEEP-w/o*)
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To: oceanview
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.

I don't agree. Everyone would then have the same protection against infringement from state and local governments. Depending on how narrow or broad the ruling, it might overturn many of those restrictive laws.

658 posted on 03/09/2007 6:10:13 PM PST by Ken H
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To: ctdonath2

I did. That's when people started nitpicking.


659 posted on 03/09/2007 6:12:58 PM PST by robertpaulsen
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To: NinoFan; oceanview
One more thought. I'm curious how the outcry over Kelo might impact Kennedy's vote on issues like the 2A. We know he is swayed by the liberal media, but we also know that he seems to be swayed somewhat by public opinion of the Court as well. Perhaps the criticism over the Kelo decision might persuade him not to make such a stupid, elitist move again.

Hmm. Trying to analyze the brain of Anthony Kennedy. Not easy. ;)
660 posted on 03/09/2007 6:15:03 PM PST by NinoFan
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To: RKBA Democrat
Thanks for being who you are, but still, I find the Democratic party utterly repulsive. Not that the current Republicans are much better, mind you.

Sometimes I feel like a guy stranded behind enemy lines, and all I have is FR.

661 posted on 03/09/2007 6:16:48 PM PST by Sender (Try to look unimportant; they may be low on ammo.)
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To: oceanview
that's where this is going to end up - it remains with the states, with a federal "don't cross this line" minimum protection in place.

I agree. (As you no doubt surmised, I made my previous reply before reading this post)

662 posted on 03/09/2007 6:16:49 PM PST by Ken H
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To: Seruzawa
"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."

I wonder if she also would rule that the First Amendment doesn't apply in DC, "because it's not a state." And how would the press react when reporting such a decision.
663 posted on 03/09/2007 6:20:30 PM PST by omnivore
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To: Abundy
"Do you believe the Second Amendment protects and individual right or a collective right?"

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?

664 posted on 03/09/2007 6:25:33 PM PST by robertpaulsen
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To: Old Dirty Bastiat
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.

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.

665 posted on 03/09/2007 6:28:35 PM PST by Texas Federalist (Gingrich '08)
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To: Abundy

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.


666 posted on 03/09/2007 6:40:00 PM PST by ctdonath2 (The color blue tastes like the square root of 0?)
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To: Abundy
"And I'm betting you can't identify my argument within 60 seconds."

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?

667 posted on 03/09/2007 6:42:18 PM PST by robertpaulsen
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To: robertpaulsen

So if people start getting critical of your arguments, your fitting response is to insult them?


668 posted on 03/09/2007 6:43:49 PM PST by ctdonath2 (The color blue tastes like the square root of 0?)
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To: Abundy
"you'll go toe-to-toe to defend Miller?"

Huh?

I told the poster that I will go toe-to-toe with him and debate the Miller decision.

669 posted on 03/09/2007 6:45:08 PM PST by robertpaulsen
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To: NinoFan

Kennedy is a strange guy.


670 posted on 03/09/2007 6:50:50 PM PST by oceanview
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To: NinoFan
"Even if only two circuits have adopted the "individual right" view, the Court can still side with those two circuits."

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.

671 posted on 03/09/2007 6:53:39 PM PST by robertpaulsen
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To: cryptical
All,

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.

 

672 posted on 03/09/2007 6:58:05 PM PST by zeugma (MS Vista has detected your mouse has moved, Cancel or Allow?)
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To: piytar
"Simply unbelievable that a federal judge would think the the Constitution and Amendments thereto do not completely and fully apply to DC. Simply unbelievable!"

She is terribly stupid, but I can believe it, that she would think or write this, despite being a federal judge. A lot of judges out there are complete idiots, including about their own field of law, as well as everything else. Their job doesn't require intelligence, all they're doing is exercising power arbitrarily. To mop a floor or cook a hamburger takes some level of intelligence. To listen to, or just sit there and pretend to listen to, two groups of lawyers disagree about something, and then pick one side as the winner, doesn't. As she makes abundantly clear with her "reasoning."

I'm not saying all judges are morons, they're not. I'm just saying some are, because there's no job requirement that says they can't be.
673 posted on 03/09/2007 7:07:05 PM PST by omnivore
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To: AnnaZ

Love your tag;-)


674 posted on 03/09/2007 7:07:32 PM PST by HangFire (I'm only wearing black until they come up with something darker...)
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To: Abundy
"and the dissent in the 9th circuit's en banc review of Locklear was dead on point"

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.

675 posted on 03/09/2007 7:08:29 PM PST by robertpaulsen
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To: Ken H
"Everyone would then have the same protection against infringement from state and local governments."

Or, with Kelo as an example, everyone would then have no protection against infringement from state and local governments.

676 posted on 03/09/2007 7:13:24 PM PST by robertpaulsen
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To: Publius6961

Just FYI...at one point in time, slavery was legal in EVERY SINGLE ONE of the original 13 US colonies.


677 posted on 03/09/2007 7:15:48 PM PST by 2harddrive (...House a TOTAL Loss.....)
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To: ctdonath2
"So if people start getting critical of your arguments, your fitting response is to insult them?"

If by "critical" you mean nitpicking and insinuating, then yes. But you'll note I held back.

678 posted on 03/09/2007 7:17:39 PM PST by robertpaulsen
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To: zeugma

Try Googling the decision. From the results of the search, sometimes you can then select between HTML or .pdf versions of the text.


679 posted on 03/09/2007 7:20:49 PM PST by robertpaulsen
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To: robertpaulsen

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.


680 posted on 03/09/2007 7:31:15 PM PST by NinoFan
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To: robertpaulsen

Are you really saying that calling someone an "a-hole" (censored version) is holding back? Swapping $ for S didn't make it any better. You were getting pretty rude there for a bit.


681 posted on 03/09/2007 7:35:43 PM PST by NinoFan
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To: NinoFan

I have low expectations of RP based on experience. Don't get uyour hopes up, either.


682 posted on 03/09/2007 7:43:37 PM PST by RKV ( He who has the guns, makes the rules.)
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To: NinoFan
"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"

Well listen to you. Before I ever posted to you, here's how you introduced yourself to me: "Try reading the ruling before opening your mouth", "making stupid asumptions", "wipe off my computer screen".

In my first post to you I acknowledged my mistake by saying "my bad". Quite civil, despite your tone.

Oh, but you looked at that as an invitation to be even more abusive, saying that I had "little knowledge of the law" and I should "do a bit more studying and research." You followed that with your bitchy little summary capped with "who's the real idiot here?"

It was only at that point that I responded to you in kind.

So, in summary -- you condescending little a$$wipe -- take your advice about "winning over people" and stick it.

683 posted on 03/09/2007 8:12:50 PM PST by robertpaulsen
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To: robertpaulsen

You used the "idiot" term against another poster first. You were being rude to everyone here. Nowhere did I descend to profanity. You alone went there. In short, you did indeed start it.

As for others, you were getting a lot of basic things wrong, and yet, you were being just as rude as rude can be on this thread. How do you expect people to respond to that?

BTW, pointing out those inaccuracies is not nitpicking. It wasn't a case of you saying, for example, that something costs $23.53 and someone else jumping on you and saying it costs $23.54. The facts being debated were a bit more important than that.

It has become apparent to me that you love to argue, but for tonight, I'm done.



684 posted on 03/09/2007 8:28:19 PM PST by NinoFan
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To: Joe Brower; All
This is great news, and the decision is a good read. But here is a turd in the punchbowl:

Reasonable restrictions also might be thought consistent with a “well regulated Militia.” The registration of firearms gives the government information as to how many people would be armed for militia service if called up. Reasonable firearm proficiency testing would both promote public safety and produce better candidates for military service.

If they want people eligable for the militia to submit their names and contact info, that is one thing. They don't need an inventory of your equipment.

Also, they may want proficiency testing for membership in the "organized" militia, but not as a condition to own "arms".

685 posted on 03/09/2007 8:40:46 PM PST by MileHi ( "It's coming down to patriots vs the politicians." - ovrtaxt)
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To: MileHi
I have not read every thread but a few thoughts before I hit the sack.

The 2nd Amendment is broken into two thoughts separated by the coma. The first part is the regulated militia part. The 2nd part is the "right of the people".

The Bill Of Rights is about the rights of the individual and the 2nd amendment is part of it.

IMHO it is clear as a bell that the 2nd Amendment is about the right of the individual to bear arms. Today the court majority got it exactly right. The dissenting opinion was totally out to lunch.
686 posted on 03/09/2007 8:49:27 PM PST by Parley Baer
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To: robertpaulsen
You want the U.S. Supreme Court to make a second amendment decision based on only two decisions in our favor?

You are not on "our" side. From post #664:

QUESTION: "Do you believe the Second Amendment protects an individual right or a collective right?"

Your reply: 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.

Post #664

You talk out of both sides of your mouth.

687 posted on 03/09/2007 8:53:39 PM PST by Ken H
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Comment #688 Removed by Moderator

To: Parley Baer
IMHO it is clear as a bell that the 2nd Amendment is about the right of the individual to bear arms. Today the court majority got it exactly right. The dissenting opinion was totally out to lunch.

Agreed, but what I posted is from the majority opinion.

689 posted on 03/09/2007 9:06:45 PM PST by MileHi ( "It's coming down to patriots vs the politicians." - ovrtaxt)
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To: jmc813

My contention is only that it can be lawfully removed from some individuals.


690 posted on 03/09/2007 9:07:18 PM PST by justshutupandtakeit (Defeat Hillary's V'assed Left Wing Conspiracy)
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To: Parley Baer
"it is clear as a bell that the 2nd Amendment is about the right of the individual to bear arms."

A) A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

B) The right of the people to keep and bear Arms, shall not be infringed.

Basically, you're saying that "A" and "B" are the same thing. Identical, really.

Then why all the extra words in "A"? Madison thought it would look cool?

691 posted on 03/09/2007 9:11:24 PM PST by robertpaulsen
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To: Ken H

My opinion is based on the vast majority of court opinions. What are you going on, feelings?


692 posted on 03/09/2007 9:19:21 PM PST by robertpaulsen
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To: robertpaulsen
Or, with Kelo as an example, everyone would then have no protection against infringement from state and local governments.

It is misleading to say that everyone would "then" have no protection against such infringments on the RKBA. There is no federal protection against state and local infringments "now". You already conceded that a SCOTUS decision saying that the RKBA was NOT an individual right wouldn't affect state laws - Post #607

693 posted on 03/09/2007 9:31:27 PM PST by Ken H
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To: robertpaulsen
Then why all the extra words in "A"? Madison thought it would look cool?

That is covered pretty well in the decision. Sorry it shoots down your entire posting history on this forum.

694 posted on 03/09/2007 9:34:51 PM PST by MileHi ( "It's coming down to patriots vs the politicians." - ovrtaxt)
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To: robertpaulsen; AlBundy
My opinion is based on the vast majority of court opinions.

You were asked for your view of the Second Amendment, not your view of how courts have interpreted it.

What are you going on, feelings?

The plain meaning of the language, Sarah.

695 posted on 03/09/2007 9:54:39 PM PST by Ken H
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To: cryptical

Mayor Fenty is outside of himself over this - surprise, surpise. At least Anthony Williams didn't seem to fly off the handle so easily. But then this is a mayor who protests DC congressional non-voting representation by dissing the First Lady and going to Pelosi's box instead during the State of the Union as if the President can legislate such things and Congress cannot. Clueless.


696 posted on 03/09/2007 9:56:55 PM PST by Norman Bates
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To: Oztrich Boy
If the ruling in this case is upheld by the U.S. Supreme Court, it has the potential to lay the groundwork for literally every local, state, and federal gun law in America to be challenged: from the federal ban on gun possession by felons, to the ban on carrying guns onto airplanes, to the ban on the manufacture of fully automatic machine guns for civilian use. Violence policy Center

Unfortunately, In my humble and ignorant opinion it doesn't have nearly that much potential. The VPC is just trying to drum up hysteria in the anti-gun ranks in order to raise more money from the kooks and gun control freaks who support it financially.

The decision is actually quite narrow in scope. If I correctly interpreted what I read of it, it is tailored to strike down only those sections of the DC law that (A) prohibited registering a handgun unless it had been previously registered prior to a certain date in 1976, which in effect made it impossible to legally possess a handgun brought into the D.C after that date, and (B) mandated that a gun in the home be kept partially disassembled or made non-functional in some other way, and (C) prohibited a handgun to be carried anywhere at all, including from room to room of the owner's home.

OTOH if the VPC ranting is right, my ignorant opinion is wrong, (hope hope) and the SC grants a writ of certiori to a D.C. appeal of this decision, that situation would have the potential to give new life to the moribund 2nd Amendment and the VPC's worst nightmare could conceivably become reality. May God in his infinite wisdom and perfect justice grant that it turn out that way.

697 posted on 03/09/2007 10:00:26 PM PST by epow (If I'm wrong about whoJesus is I lose nothing when Idie, if the atheist is wrong he loses everything)
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To: GovernmentShrinker

you are equating Jim Crow laws with owning a gun??


698 posted on 03/09/2007 10:10:40 PM PST by Tulsa Ramjet ("If not now, when?" "Because it's judgment that defeats us.")
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To: NinoFan
The states could still have stronger protections than the minimum that the Court reads into the 2A.

Or weaker.

699 posted on 03/09/2007 10:12:32 PM PST by Mojave
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To: P-Marlowe

Lets do a survey of DC and I bet you would find out this:

90% of people that have a gun, shouldn't.
and 90% of people that don't have a gun, are robbed.


700 posted on 03/09/2007 10:12:36 PM PST by Tulsa Ramjet ("If not now, when?" "Because it's judgment that defeats us.")
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