DC Circuit strikes down DC gun law

How Appealing Blog ^ | 03/08/2007 | Howard Bashman

[coloradan]

Heh. Gotta love it when the Admin Moderator edits your post by ADDING EMPHASIS!

This decision is big.

[blackie]

It's about time that the myth that the militia are the only ones the 2nd Amendment applies to, is dispelled.

It also kills the myth about it being a state Right only ~ the people are all of the people.

[BurbankKarl]

The District relies heavily on the use of “bearing arms” in a conscientious objector clause that formed part of Madison’s initial draft of the Second Amendment. The purpose of this clause, which was later dropped from the Amendment’s text, was to excuse those “religiously scrupulous of bearing arms” from being forced “to render military service in person.” THE COMPLETE BILL OF RIGHTS 169 (Neil H. Cogan ed. 1997). The District argues that the conscientious objector clause thus equates “bearing arms” with military service. The Quakers, Mennonites, and other pacifist sects that were to benefit by the conscientious objector clause had scruples against soldiering, but not necessarily hunting, which, like soldiering, involved the carrying of arms. And if “bearing arms” only meant “carrying arms,” it is argued, the phrase would not have been used in the conscientious objector clause because Quakers were not religiously scrupulous of carrying arms generally; it was carrying arms for militant purposes that the Friends truly abhorred (although many Quakers certainly frowned on hunting as the wanton infliction of cruelty upon animals).

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We note that the Ninth Circuit has recently dealt with a Second Amendment claim by first extensively analyzing that provision, determining that it does not provide an individual right, and then, and only then, concluding that the plaintiff lacked standing to challenge a California statute restricting the possession, use, and transfer of assault weapons. See Silveira v. Lockyer, 312 F.3d 1052, 1066-67 & n.18 (9th Cir. 2003). We think such an approach is doctrinally quite unsound. The Supreme Court has made clear that when considering whether a plaintiff has Article III standing, a federal court must assume arguendo the merits of his or her legal claim.

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The District’s argument, on the other hand, asks us to read “the people” to mean some subset of individuals such as “the organized militia” or “the people who are engaged in militia service,” or perhaps not any individuals at all—e.g., “the states.” See Emerson, 270 F.3d at 227. These strained interpretations of “the people” simply cannot be squared with the uniform construction of our other Bill of Rights provisions. Indeed, the Supreme Court has recently endorsed a uniform reading of “the people” across the Bill of Rights. In United States v. Verdugo- Urquidez, 494 U.S. 259 (1990), the Court looked specifically at the Constitution and Bill of Rights’ use of “people” in the course of holding that the Fourth Amendment did not protect the rights of non-citizens on foreign soil:

“[T]he people” seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by “the People of the United States.” The Second Amendment protects “the right of the people to keep and bear Arms,” and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to “the people.” See also U.S. CONST., amdt. 1; Art. I, § 2, cl. 1. While this textual exegesis is by no means conclusive, it suggests that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. Id. at 265. It seems unlikely that the Supreme Court would have lumped these provisions together without comment if it were of the view that the Second Amendment protects only a collective right. The Court’s discussion certainly indicates—if it does not definitively determine—that we should not regard “the people” in the Second Amendment as somehow restricted to a small subset of “the people” meriting protection under the other Amendments’ use of that same term.

[longtermmemmory]

so now the majority opinion is an assertion of dicta but her MINORITY opinion which is all dicta is valid because .....?

[WardMClark]

Ping

[Southack]

Sounds like a court ruling went our way!

[Tulsa Ramjet]

two Federal judges have negated the democratically-expressed will of the people of the District of Columbia

How about the will of those killed who didn't have a pistol, sister? And how does some episode of a nutcase shooting Reagan give you the right to keep other people from protecting themselves?? Crawl back to your gated community, the rest of us need to be armed and ready. And there is plenty of events noted on FR to show how some unsuspecting business owner or homeowner was able to protect themselves. Go live with the amish. Not that there is anything wrong with them.

[Rakkasan1]

Because when everyone is packin', they don't come attackin'.

sounds like Jesse Jagmo with a brain transplant.

[robertpaulsen]

"Its mean EVERY gun control law that inhibits or prevents people from exercising their right of self-defense is on its face, unconstitutional."

Not yet. This ruling only applies to the District of Columbia. The D.C. Court of Appeals is the equivalent of a state supreme court.

[Atlas Sneezed]

In Emerson, they found that he DID have an individual right - which, under very specific circumstances which he met, could be suspended.

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They can say all they want, but they did not need to find an individual right to uphold his conviction, which they did.

That's dicta, and it is why today's ruling means something much more. Now, we have a real split among the circuits. The Supreme Court can ignore differences in dicta, but not differences in holdings.

[JamesP81]

but each one will have to be individually adjudicated.

I can live with that.

[gakrak]

Praise the Lord. Amen.

[GovernmentShrinker]

being understood as resistance to either private lawlessness or the depredations of a tyrannical government

Wow! TWO DC Circuit judges GET IT!

Circuit Judge Karen LeCraft Henderson dissented . . . because the Second Amendment's protections . . . do not extend to the District of Columbia, because it is not a State.

Then certainly she won't mind if the other 2 judges stuff a gag in her mouth and tie up her hands so she can't speak, write, or type, and delete the text of her idiotic dissent from the legal record. After all, since this is occurring in DC, she wouldn't be able to claim an infringement of her First Amendment rights, since she doesn't think the Bill of Rights applies to DC.

[Larry Lucido]

That's what I was afraid of. :-) Off to look now.

[Dead Corpse]

This has to be one of the biggest thrills of my long life on this earth! Maybe that's why I was so skeptical at first.

It's definitely a step in the right direction. But it's only one battle in a larger war. It could be that "tipping point" though.

I'm as cautiously optimistic as I am elated.

[A Strict Constructionist]

"Henderson - Bush 41"

I'm shocked, well he quit the NRA so what do you expect.

[GovernmentShrinker]

Isn't this the first court case stating that the 2nd Amendment applies to individuals?

Hardly, but the gun-grabbers have managed to brainwash a lot of 2A defenders into believing there have been no cases upholding the individual right. I would strongly suggest that you READ the Supreme Court's U.S. v. Miller decision, focusing on what the actual holding was, and read up on the circumstances surrounding the fact that its remand to the lower court was never carried out. Gun-grabbers are fond of citing this case as supporting their claims, but in fact it does just the opposite.

[Larry Lucido]

Post 34

[Jim Verdolini]

"RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States, all or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.:"

I think you misread this. This incorporated the Bill of Rights into the federal constitution, BUT, did not incorporate the BOR's into state law or prempt state constitutions on the issue...the intent of the 14th amendment was to do that.

[GovernmentShrinker]

this isn't scrappleface ..is it??

No, but it's sure hard to believe it's not, when you read preposterous claims from a federal circuit court judge like "the Second Amendment doesn't apply to DC because it's not a state".