DC Circuit court strikes down DC gun law

Little-Acorn

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A little at a time, our southpaw brethern's fixation on illegally violating the right of the people to keep and bear arms, is being dismantled.

The full Court opinion is long, but a great read. See the link to it in the first paragraph. It points out that, among other things, the left's constant insistence that the 2nd amendment only protects the rights of a militia is incorrect; and it explains why.

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http://howappealing.law.com/030907.html#023153

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 ( http://pacer.cadc.uscourts.gov/docs/common/opinions/200703/04-7041a.pdf ).

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.
 

Tarantulas

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For those of us who have been waiting for a plain-spoken court decision on the Second Amendment, here it is. The Second Amendment does protect an individual's right to keep and bear arms. If I weren't at work right now I would be doing the Dance Of Joy!

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."
Link

Complete ruling

So will this affect New York City and Chicago and other gun-grabber areas? I sure hope so! :)

You know what? Today is a great day! :eusa_clap:
 
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Little-Acorn

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The DC Circuit now joins the 5th Circuit in ruling that the 2nd amendment protects and individual's right ow own and carry a gun. The more, the merrier.

Hopefully, a case like this will make its way to the Supreme Court, which will finally overturn the miscarriage of the case US v. Miller from 1939. Most present Federal gun control laws are based on that decision, and will be found unconstitutional once that decision is gone.

Can't happen too soon.
 

Avatar4321

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merged the threads since it covers the same issue.
 

Annie

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For those of us who have been waiting for a plain-spoken court decision on the Second Amendment, here it is. The Second Amendment does protect an individual's right to keep and bear arms. If I weren't at work right now I would be doing the Dance Of Joy!


Link

Complete ruling

So will this affect New York City and Chicago and other gun-grabber areas? I sure hope so! :)

You know what? Today is a great day! :eusa_clap:
I think that will depend on whether or not the SCOTUS grants cert down the line and how they rule?
 

Merlin

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I'm glad they ruled like that, but it don't affect me personally. I am as qualified to interpret the Constitution as well as they are and I don't pay any attention to laws that I consider unconstitutional.
 

Annie

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What did the framers mean? An interesting discussion of Montesquieu and others here from Blackstone:

http://volokh.com/archives/archive_2007_03_04-2007_03_10.shtml#1173488580
Friday, March 9, 2007
[Eugene Volokh, March 9, 2007 at 8:03pm] Trackbacks
"Free State," Straight Outta Blackstone:

A commenter in a thread below questioned the plausibility of the view that "security of a free State" in the Second Amendment could mean "security of a free country," as opposed to security of one of the States of the Union against federal oppression.

Well, it turns out that talk of what institutions -- especially military ones -- are good for a free state is all over Blackstone's influential Commentaries on the Law of England. There, of course, Blackstone had to have been talking of state in the sense of country or nation (American states as subordinates in a federal system were a decade in the future). Consider, for instance, book 1, p. 408 (emphasis added):

In a land of liberty it is extremely dangerous to make a distinct order of the profession of arms. In absolute monarchies this is necessary for the safety of the prince, and arises from the main principle of their constitutions, which is that of governing by fear: but in free states the profession of a soldier, taken singly and merely as a profession, is justly an object of jealousy. In these no man should take up arms, but with a view to defend his country and it's laws: he puts not off the citizen when he enters the camp; but it is because he is a citizen, and would wish to continue so, that he makes himself for a while a soldier.
Or book 1, p. 415 (emphasis added):

To prevent the executive power from being able to oppress, says Baron Montesquieu, it is requisite that the armies with which it is intrusted should consist of the people, and have the same spirit with the people; as was the case at Rome till Marius new-modeled the legions by enlisting the rabble of Italy, and laid the foundation of all the military tyranny that ensued. Nothing, then, according to these principles, ought to be more guarded against in a free state than making the military power, when such a one is necessary to be kept on foot, a body too distinct from the people.​

Or book 1 p. 417 (emphasis added):

Nor is this state of servitude [created by excessively rigorous military discipline during peacetime] quite consistent with the maxims of sound policy observed by other free nations. . For, the greater the general liberty is which any state enjoys, the more cautious has it usually been of introducing slavery in any particular order or profession. These men, as baron Montesquieu observes, seeing the liberty which others possess, and which they themselves are excluded from, are apt (like eunuchs in the eastern seraglios) to live in a state of perpetual envy and hatred towards the rest of the community; and indulge a malignant pleasure in contributing to destroy those privileges, to which they can never be admitted. Hence have many free states, by departing from this rule, been endangered by the revolt of their slaves: while, in absolute and despotic governments where there no real liberty exists, and consequently no invidious comparisons can be formed, such incidents are extremely rare. Two precautions are therefore advised to be observed in all prudent and free governments; 1. To prevent the introduction of slavery at all: or, 2. If it be already introduced, not to intrust those slaves with arms; who will then find themselves an overmatch for the freemen. Much less ought the soldiery to be an exception to the people in general, and the only state of servitude in the nation.​

...
 

Tarantulas

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It's pretty clear what the Second Amendment means if you read the Federalist Papers where they discuss it. In one place the militia is defined as "the whole of the people" and elsewhere they talk about how it's important that "ever man go armed." And "the people" discussed in the Second Amendment are the same "the people" discussed in the First Amendment and others, that is, everyone, not just a militia.

I would have to take issue with this quote, though:

(American states as subordinates in a federal system were a decade in the future)
Unless my memory is completely gone, the federal government was designed to have only very limited power, and the states had much more. Originally, the federal government was subordinate to the states, not the other way around. Of course these days things are much different, and that's too bad.
 

Annie

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It's pretty clear what the Second Amendment means if you read the Federalist Papers where they discuss it. In one place the militia is defined as "the whole of the people" and elsewhere they talk about how it's important that "ever man go armed." And "the people" discussed in the Second Amendment are the same "the people" discussed in the First Amendment and others, that is, everyone, not just a militia.

I would have to take issue with this quote, though:


Unless my memory is completely gone, the federal government was designed to have only very limited power, and the states had much more. Originally, the federal government was subordinate to the states, not the other way around. Of course these days things are much different, and that's too bad.

That 10 years in the future, was referring to the publication of Blackstone's text.
 
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Little-Acorn

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I don't pay any attention to laws that I consider unconstitutional.
Really?

Grab a select-fire M16 and walk thru Central Park with it, without having paid the 1934 NFA tax on it or notifying the New York City fuzz. Completely constitutional, especially in light of the 2nd amendment.

You'll spend the next several years "not paying attention to unconstitutional laws" from behind the bars of a jail cell.

"Not paying attention" to such laws, clearly isn't enough. We must GET RID of them.
 

Merlin

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Really?

Grab a select-fire M16 and walk thru Central Park with it, without having paid the 1934 NFA tax on it or notifying the New York City fuzz. Completely constitutional, especially in light of the 2nd amendment.

You'll spend the next several years "not paying attention to unconstitutional laws" from behind the bars of a jail cell.

"Not paying attention" to such laws, clearly isn't enough. We must GET RID of them.
I don't particularly like the M16, I like a .44 Magnum. If I walk in Central Park, go to church, go to a dive in San Francisco, go to a picnic in Idaho, or fly fishing the Yellowstone river in Montana it is with me.
 

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