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
National Guard is not the militia.
The militia is those OUTSIDE of the uniformed services.
Should be so.
I would respond .... but I just can't be bothered. I'm sure you understand that, don't you? You know how that is, don't you?
Huh? Does your copy of the second amendment say, "the right of the citizen to keep and bear arms shall not be infringed"?
Yeah. I know your position is baseless so it is a relief that you have given up and that you don' even know what you are saying.
So no problem and thanks for not responding with baseless chatter.
Do you honestly believe that the framers meant all people on the planet or those under the jurisdiction of the U.S.?
You are getting more and more ridicilous.
However, as the ruling above correctly states:
Pg 13. The provision’s second comma divides the Amendment into two clauses; the first is prefatory, and the second operative. Appellants’ argument is focused on their reading of the Second Amendment’s operative clause. According to appellants, the Amendment’s language flat out guarantees an individual right “to keep and bear Arms.” Appellants concede that the prefatory clause expresses a civic purpose, but argue that this purpose, while it may inform the meaning of an ambiguous term like “Arms,” does not qualify the right guaranteed by the operative portion of the Amendment.
Well... duh.
They spend the next five or six pages discussing why robertpaulsen is completely off his nut and a total Brady Bunch shill...
How many lower federal court decisions saying exactly what I said would you like to see? 10? 20? 30?
Yep. I am a person. Therefore, the "Right of the people..."
Still haven't read the ruling yet have you....
Come on... What are you afraid of? Being wrong? You already know that. But at least be informed about what this thread is about...
In determining whether the Second Amendment’s guarantee is an individual one, or some sort of collective right, the most important word is the one the drafters chose to describe the holders of the right—“the people.” That term is found in the First, Second, Fourth, Ninth, and Tenth Amendments. It has never been doubted that these provisions were designed to protect the interests of individuals against government intrusion, interference, or usurpation. We also note that the Tenth Amendment—“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”—indicates that the authors of the Bill of Rights were perfectly capable of distinguishing between “the people,” on the one hand, and “the states,” on the other. The natural reading of “the right of the people” in the Second Amendment would accord with usage elsewhere in the Bill of Rights.
Whoops... Sorry Bobby... if I keep doing this, it's really going to make you look like an idiot isn't it?
I think that the majority of gun owners who care about the RKBA are now sufficiently aware of the treacherous and lying tactics of our enemies that they won't be nearly as willing to tolerate their assaults on the 2nd Amendment without fighting back harder and with more determination than the antis can handle.
Couldn't have said it better or more accurately.
Check out this animated color map of the right to carry in the US from 1986-2006. It's a real beaut!
http://www.freerepublic.com/~jdege/
Looks like Illinois is the slacker State...
My apologies. I was intending to respond to a different post. Ignore it.
Very few showed up with weapons.
One authority cited by the District has attempted to equate “keep” with “keep up,” a term that had been used in phrases such as “keep up a standing army” or, as in the Articles of Confederation, “every state shall keep up a well regulated and disciplined militia . . . .” See Wills, supra, at 66. The argument that “keep” as used in “the right of the people to keep . . . Arms” shares a military meaning with “keep up” as used in “every state shall keep up a well regulated militia” mocks usage, syntax, and common sense. Such outlandish views are likely advanced because the plain meaning of “keep” strikes a mortal blow to the collective right theory. Turning again to Dr. Johnson’s Dictionary, we see that the first three definitions of “keep” are “to retain; not to lose,” “to have in custody,” “to preserve; not to let go.” Johnson, supra, at 540. We think “keep” is a straightforward term that implies ownership or possession of a functioning weapon by an individual for private use. Emerson, 270 F.3d at 231 & n.31; accord Silveira, 328 F.3d at 573-74 (Kleinfeld, J.). The term “bear arms,” when viewed in isolation, might be thought ambiguous; it could have a military cast. But since “the people” and “keep” have obvious individual and private meanings, we think those words resolve any supposed ambiguity in the term “bear arms.”
Sorry Bobby... You are an idiot...
But the mere fact they didn't take judicial notice that a sawed off shotgun wasn't a militia weapon, which they could have done sua sponte, is significant as well.
Also, for reference, this particular Federal Court decision redresses Miller. Tears your interpretation apart quite neatly. Pgs 29-35.
Not the actual militia, which was simply the populace at large. One of the arguments in the Emerson case was based on the fact that "the Militia" as defined at the time the BOR passed, meant the entire populace. The argument equating the national guard to the militia is not a proper analogy because there was a group that performed similar functions to our current police forces, national guard or army reserve, called the "select militia". Clearly, the founders intended the "militia" in the second amendment to mean every citizen capable of carrying a weapon.
Correct, it doesn't.
Nor does the 1st define or limit speech. Nor does the the 4th define or limit "unreasonable". Nor does the 6th define or limit "speedy". Nor does the 8th define or limit "excessive".
See a pattern here? Now, guess who defines or limits those rights? Yep. The U.S. Supreme Court.
Exactly.
ahhmmm BS
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