D.C. Circuit Upholds Second Amendment

[swman]

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

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. 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." And at "The BLT: The Blog of Legal Times," Tony Mauro has a post titled "D.C. Circuit Strikes Down D.C. Gun Control Laws."

[Redworm]

whoa

cool

[fast200]

You stole my thunder. I rushed here to post this and you beat me to it!!! Awesome news indeed!!!!!

[JuanCarlos]

Good to see. It'll be interesting to see where this goes.

[Musketeer]

Wow, a decision that is logical and makes sense!

[FirstFreedom]

Interesting & groundbreaking indeed! Now you've got 2 circuits (5th and DC) saying individual right, along with a plethora of weighty scholarship...maybe the SCOTUS will finally quit shirking/abdicating their duty to rule....nah, that won't happen I don't think. Fun to consider though..

[Camp David]

So all those illegally arrested previously will be compensated for their troubles?

GOOD NEWS IN ANY EVENT!

Bravo!

[deadin]

maybe the SCOTUS will finally quit shirking/abdicating their duty to rule....nah, that won't happen I don't think. Fun to consider though..

The thing that I worry about, just a little, is what if SCOTUS does agree to hear it and it comes out on the wrong side. Sometimes it's better the devil you know than the devil you don't.

[Wildalaska]

The thing that I worry about, just a little, is what if SCOTUS does agree to hear it and it comes out on the wrong side.

The Court ALWAYS comes down on the wrong side...in SOMEONES eyes

WildletsreadthedecisionAlaska

[Number 6]

The minority judge's opinion is based upon an irrelevancy; i.e., that because the Capitol District is not a state, the Second Amendment does not apply.

Under that pathetic excuse for legal analysis, that would mean there are no OTHER Constitutional rights and protections in DC; i.e., NO freedom of speech, assembly or petition; no protections against unwarranted search and seizure; no Miranda warnings or presumption of innocence.

The Capitol District is part of the US; the Constitution is THE law of the land. Next burning legal issue.

What quote does THIS judge fill?

Besides cretins.........

[Wildalaska]

Before you start calling folks cretins, did you READ the decison or are you just lettin other folks do your thinking for you

WildanalyzeAlaska

[badbob]

Number 6 raised a good point. Does DC have the same rights as a state under the 10th A?

badbob

[Number 6]

Before you start calling folks cretins, did you READ the decison [sic] or are you just lettin [sic] other folks do your thinking for you[?]

What part of "isn't a state" did you miss?

Judge Karen Henderson dissented, saying that because D.C. isn't a state, the Second Amendment doesn't apply to it.

[Wildalaska]

What part of the question "did you read the decision" did you not understand?

What the papers wrote may be right, may be wrong, but its intellectually dishonest to engage in a debate without reviewing primary sources vis a vis some agenda driven report of what someone said was said

WildgetbacktomeOKAlaska

[Number 6]

What part of the question "did you read the decision" did you not understand?

You mean THIS:

To sum up, there is no dispute that the Constitution, case law and applicable statutes all establish that the District is not a State within the meaning of the Second Amendment. Under United States v. Miller, 307 U.S. at 178, the Second Amendment’s declaration and guarantee that “the right of the people to keep and bear Arms, shall not be infringed” relates to the Militia of the States only. That the Second Amendment does not apply to the District, then, is, to me, an unavoidable conclusion.

For the foregoing reasons, I would affirm the district court’s dismissal of Heller’s Second Amendment challenge to section 7-2502.02(a)(4) for failure to state a claim for relief under Federal Rule of Civil Procedure 12(b)(6). I would affirm its dismissal of the other five appellants’ claims as well as Heller’s other claims for lack of standing under Federal Rule of Civil Procedure 12(b)(1). Accordingly, I respectfully dissent.

Yeah, I read it.

I also note from READING her dissent that she poses a disingenous interpretation of Miller. That case made express reference to the UNorganized militia; all able-bodied males (at that time) between 17 and 45 years of age.

States were irrelevant under that analysis, yet said males were to come, when called into service, "...bearing their own arms of the type in service at the time" as best I recall the language.

Yes, I read Miller, too.

[Wildalaska]

OK so you disagree with her legal interpretation (and I cant say one way or the other not having read the WHOLE decision)....

Now is that mean you can call her a cretin?...becasue you dont agree?

Tell ya what, I can make a cogent legal argument that even under an indvidual rights interpretation of the 2nd all gun control laws presently in effect whether state or federal are constitutional...

Does that make me a cretin?

WildwaitingforthisoneAlaska

[Mike Irwin]

Uh oh.

Now DC's streets will be awash in uncontrolled gun violence.

[Mike Irwin]

"Tell ya what, I can make a cogent legal argument that even under an indvidual rights interpretation of the 2nd all gun control laws presently in effect whether state or federal are constitutional...

Does that make me a cretin?"

No, you being you makes you a cretin.

[BamaMac54]

Here's one for freedom, folks. I almost forgot how this feels

[MrApathy]

If a nation expects to be ignorant and free in a state of civilization, it expects what never was and never will be... if we are to guard against ignorance and remain free, it is the responsibility of every American to be informed. -- Thomas Jefferson

Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.
James Madison

youll likely never see legal writing gone

ever see a dog that thinks its free? tries to take off running only to find out it has a collar with a leash firmly in the hand of its master.
YIP!

[Wildalaska]

No, you being you makes you a cretin.

I love you too sweetie

youll likely never see legal writing gone

Good

WildhowelsetoaccomodateeveryoneAlaska

[Number 6]

OK so you disagree with her legal interpretation (and I cant say one way or the other not having read the WHOLE decision)....

Now is that mean you can call her a cretin?...becasue [sic] you dont [sic] agree?

No, because under her pathetic rationalization, the ENTIRE Bill of Rights would be a nullity in any US territory not a "State." That's DC, Puerto Rico, the American Virgin Islands, Guam, American Samoa - get the picture?

[Wildalaska]

O yes sir I get it, thank you for enlightening me I never knew anyhting about constituional law until you told me.

Anyway, havent answered whether I am a cretin too?

PS I know how to spell because, I just dont type well enough...thatnks for correcting me though.

PPS...you better read her whole dissent a little better before you extrapolate...

PPPS Her decision, regardless, is wrong under 12b6. Just so you know.

WildimzippythepinheadAlaska

[Glenn E. Meyer]

So it this appealed? Does the Justice Department have to support DC at the next level?

What does it actually do? Can DC residents actually go out and get a gun?

Not being a legal bagel or beagle - what's next?

[OBIWAN]

Wild is not a cretin

I know it for a fact

I am a cretin and Ken never comes to any of our meetings