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
At least while their side does not control the executive branch. Remember that they, or their ideological parents, fancy themselves revolutionaries. Castro, Che Guervera and all that.
Heck it would include SAMs, both MANPAD and larger ones. Would be useful after the next hijacking. Of course if all the passengers, or a significant fraction of them, are armed, there will be no next hijacking. The plane might be blown up, but it won't be hijacked and flown into any building.
And the laws stop the wackjob how?
They don't need full auto assault weapons anyway to shoot up unarmed sheep. The Muzzie in the mall in Utah used a shotgun, IIRC. Gonna ban those too?
(Forgetting for the moment that HR 1022 would ban a whole bunch of those).
You got it. I was playing with paulsen. He keeps saying the BOR does not apply to the states in spite of the supremacy clause and the tenth amendment and that states can do whatever they want.
In genarl, Ordinance is the stuff that goes down range, arms are the devices that send it there.
Private ownership of cannon was well known at the time the second amendment was written.
We have never, to my knowledge, made an ordinance control or limitation treaty with another country, we have made many arms limitation treaties. Those all concerned items much larger than small arms, such as battleships. The very term "small arms" indicates that there other sorts. Generally machine guns are small arms, cannon are not , but they are still arms.
Uh, no, that is not what I am saying it is what you are saying. I keep trying to find out from you why you omit the tenth amendment. I do understand that if the tenth is omitted or ignored as you are doing then you might, might have somewhat of a case. But you might also have a case if we omit the constitution altogether.
You simply cannot omit what doesn't suit your point.
It would certainly signify the end of Claire Wolfe's "awkward stage."
"America is at that awkward stage. It's too late to work within the system, but too early to shoot the bastards. " - Claire Wolfe
Marion has found that packing heat aids in crack negotiations.
The mantra of losers.
For jurists who accept the theory that only arms suitable for militia use were envisioned by Madison when he wrote the amendment, as the majority opinion written by Justice McReynolds indicates the Hughes court did, it naturally follows that they would also believe that possession of a gun that has no utility as a militia arm is subject to regulation by Congress. But I think that theory is inconsistent with the intent of Madison's proposed amendment which was approved by Congress and and ratified by the states. In addition to the comments by Madison himself concerning the people's right to possess private arms, ten days after Madison introduced the 2nd Amendment in Congress Tenche Coxe wrote and published; "As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, . . . the people are confirmed . . . in their right to keep and bear their private arms."
Coxe's comment was given Madison's blessing and was widely reprinted without contradiction by him. That should be enough to give a good indication of Madison's intent for his amendment concerning the possession of private arms of all kinds, and not just those with "utility" as militia armament. Since Madison made no secret of the amendment's intent it must have been known to the members of Congress who ratified the amendment, which indicates their intent as well.
"Apparently the majority of that court believed that the militia clause of the amendment modifies the RKBA clause, and therefore the amendment only protects a right to possess arms that are suitable for arming a militia."
I've always preferred something a bit more unadulterated by some a$$bats own personal bias.
Like Constitution Society or American Memory. This way, I look directly at the Letters, Constitution, and legislation and read for myself what the Founders wrote.
Of course. Gun grabbers don't want to hear logic and the sheep are afraid we are a right. It would mean they've been perpetuating one of the largest, most self destructive scams on the American people since the inception of Social Security.
I don't disagree. However, its inaccurate to say you cannot buy a machine gun. You can.
The Coxe quote should have read;
"As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, the people are confirmed by the amendment in their right to keep and bear their private arms."
I didn't find the exact Coxe quotation , but I think my recollection of it conveys the gist of it.
I need to start using those websites as sources for historic quotations. As shown by my preceding attempts to correct and clarify a botched post, I can't remember even the well known statements and comments made by the founding fathers well enough to quote them accurately, much less those that are less well known.
No, I cannot buy one in California. Sorry, but passing the background check and paying your money will not get you a machine gun in the People's Republik. You must be an employee of the state to have one. That ain't right.
That phrase was from US v Miller.
"Except to say the one in the best position to make that determination is the one who has to buy it, provide ammo for it and become proficient with it."
So the U.S. Supreme Court remanded Miller back to the lower court to determine suitability of the weapon for a militia. In order to determine suitability, you're saying the lower court should ask .... Miller himself?
I don't think the Supreme Court would accept that.
Your statement falls back on Barron v. Baltimore, which in 1833 decided that the bill of rights applies only to the federal government. This decision was so wrong it is difficult to understand how it was made. Article VI of the constitution is clear: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
The fact that the Supreme Court ignored this is more indicative of the politics of the day and a convenient situation for all in power - you do your thing and we'll do ours. The Supreme Court has screwed up plenty of decisions, we can go from Roe v. Wade through Dred Scott and all the way back to Marbury v. Madison for examples of the court inventing things that defy the constitution.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.