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
Procedurally, Miller stands for the proposition that the second amendment is an individual right since Miller was successfully able to challenge the law all the way up to SCOTUS on grounds of a violation of his second amdendment rights.
Miller was not a "militia" member, yet SCOTUS reached the merits of the argument, therefore SCOTUS determined Miller had standing to bring the case. (Since Miller disappeared his side never briefed its case, so much of the Miller decision is based on only the government's arguments and is patently wrong - but that isn't the issue, Miller's standing is.)
Miller's procedural posture stands for the refutation of your position.
;)
Technically you're correct. Perhaps it would be more correct to say, "everyone would then be on notice by the U.S. Supreme Court that they have no protection against such infringments on the RKBA."
You will agree that property grabs by state and local governments have increased since Kelo despite the fact that, as you say, there was no protection before Kelo? Funny how that works, huh?
Let's not gloss over my main point with your technicality. State and local RKBA abuses would increase with a Kelo-type decision on gun rights by the U.S. Supreme Court if incorporated.
True enough. It's also covered pretty well in the plethora of decisions concluding a collective right.
I was curious, therefore, why the poster concluded that "it is clear as a bell that the 2nd Amendment is about the right of the individual to bear arms".
Since you're not that poster, and since you really have nothing to add to the discussion (other than some vague reference to the decision), I think we're done.
Post 36 is a parody.
I would suggest you save your insults until you're sure of your facts.
Why? You never do.
L
Adios. Go insult someone else. On another thread.
Lurker, you know how I hate to be misquoted. I'll give you a pass this time, but be forewarned that I will hit the abuse button the next time you do this.
I never said Congress can regulate anything in the name of Interstate Commerce. I very clearly said, "the government can regulate the interstate commerce of everything".
If you disagree with that statement, and it sounds as though you do, then simply tell me what interstate commerce Congress cannot regulate. That shouldn't be too difficult for one who is so sure of their position.
George Mason said as much at the Virginia Ratifying Convention.
Glad to see one court finally "got it" that the collective right is protected by the individual right- it's not a case of one or the other.
Done already. Go back and reread my postings.
L
Of course, now the Supreme Court must understand this.
After January 20th 2009, the Supreme Court may look very different with several new justices leaning hard left.
The prosecutor brought the case to SCOTUS, not Mr. Miller. Neither Mr. Miller nor his legal counsel appeared in front of the U.S. Supreme Court. Mr. Miller died before the decision was even reached.
"... on grounds of a violation of his second amdendment rights."
The lower court was vague -- they simply said the National Firearms Act violated the second amendment. They did not say why it violated the second amendment. They certainly did not say it violated Mr. Miller's individual right to keep and bear arms, as you claim.
"therefore SCOTUS determined Miller had standing to bring the case."
Again, the prosecutor brought the case.
The U.S. Supreme Court made no decision. They came to no conclusion. They never said the second amendment protected an individual right NOR did they say it protected a collective right.
They remanded the case back to the lower court with a question about the weapon's relationship to a well regulated Militia. Why would they be concerned about that relationship? What if the weapon had no relationship? What then?
I absolutely agree that the dicta from this decision is great for future incorporation. It's so great to see gun control stuck down and I'm excited at the prospect of seeing more in the future.
There was only one case in the 5th Circuit and only one case in the DC Circuit concluding an individual right. The 9th Circuit alone has a gazillion cases concluding a collective right.
The bottom line? We're not yet ready to have this heard by the USSC.
I understand that Ruth Bader Ginsberg is with Silberman on this ruling's logic--wouldn't that mean the we would have a slam-dunk at the SCOTUS?
I'm curious. What if a state decided they would maintain the citizen's arms and keep them in an armory to ensure their availability when needed? What if the state decided to provide the arms and keep them secure until needed?
How would that violate the second amendment?
Not there. You have nothing.
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