T Nation

Second Amendment Ruling

Ruling yesterday from the DC Circuit regarding the Second Ammendment.

BREAKING NEWS – Divided three-judge D.C. Circuit panel holds that the District of Columbia’s gun control laws violate individuals’ Second Amendment rights:

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.”

[quote]hedo wrote:
BREAKING NEWS – Divided three-judge D.C. Circuit panel holds that the District of Columbia’s gun control laws violate individuals’ Second Amendment rights:
[/quote]

Oh my God! There’s hope afterall!

Definitely good news.

Here’s a post thread at Volokh discussing the decisions:

http://www.volokh.com/posts/chain_1173454696.shtml

Here is a link to a pdf of the decision:

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

Seems like a very strong majority opinion that follows the “Standard Model” (see here: http://papers.ssrn.com/abstract=960788 ) of individual rights as the basis of the 2nd Amendment described by UT law prof Glenn Reynolds.

This does not bode well for gun control laws – I wonder if the USSC will take it up? It seems likely (assuming this isn’t overturned on en banc review by the DC Circuit - which in my opinion is unlikely to happen), given the circuit split with the DC and 5th Circuits on the one side, and the other circuits on the other.

This will still have to survive the 12th circut, and then the Supremes would have to find it worthy of their time before this became a national breakthrough. I’m glad for the ruling, but I have to admit that I’m pessimistic about the ultimate outcome.

Not time to raise the victory flag yet, but this is very encouraging news.

Heard this on the radio on the way home from having just picked up an FN Self-Loading Police shotgun. It was the second thing today that brought a big smile to my face…

Someone explain this to me better… they banned handguns inside one’s house?

[quote]FightinIrish26 wrote:
Someone explain this to me better… they banned handguns inside one’s house?[/quote]

You’re only allowed to have a handgun in DC if you’re a violent criminal.

They’d take guns away from the police, if they could.

[quote]FightinIrish26 wrote:
Someone explain this to me better… they banned handguns inside one’s house?[/quote]

yes. Provate ownership is illegal in DC therefore only criminals have guns in DC.

[quote]Zap Branigan wrote:
FightinIrish26 wrote:
Someone explain this to me better… they banned handguns inside one’s house?

What are they gonna do to protect their crack business’? Hell, if the mayor can smoke the shit, all the crackheads better have a gun to hold off the coppers!

So does this mean that everyone has the right to keep and bear arms? If the right of the people to keep and bear arms shall not be infringed upon does this mean convicted felons as well. There is no provision stating otherwise. If the State can regulate who can keep and bear arms is this not a conflict with the constitution?

I seriously want to know. I have conflicting issues with the 2nd amendment becasue on one hand I understand the fear with which it was provided in the Bill of Rights but on the other hand I really don’t see the need in “civilized” society to carry a “peice”. Is this not why I pay taxes to employ police?

i am a very avid supporter of the second amendment. i have a concealed weapons permit and my 9mm is like my mastercard, never leave home without it! i carry absolutly EVERYWHERE except airports and courthouses. i dont feel like im 10 feet tall just because im packing, but then again i never feel unsafe or nervous either. i go wherever i want and i do so without fear.

a gun is a tool just like anything else. use it wisely, and it will protect you. misuse it, and youll wind up in jail or in a casket. i really dont care what the liberal democratic pussies want to say about guns or say about me for carrying a gun. there is just something reassuring about the feel of that cold chunck of metal resting under my waistband.

i also own a romanian AK-47, a Tec-9, and many other firearms that have been demonized by the ignorant media. if you want to try and take them from me, you better send at least 31 people because i have 30 of you covered and thats just until i grab my next mag!

a gun in the hand is worth more than a cop on the phone!

[quote]LIFTICVSMAXIMVS wrote:
So does this mean that everyone has the right to keep and bear arms? If the right of the people to keep and bear arms shall not be infringed upon does this mean convicted felons as well. There is no provision stating otherwise. If the State can regulate who can keep and bear arms is this not a conflict with the constitution?

I seriously want to know. I have conflicting issues with the 2nd amendment becasue on one hand I understand the fear with which it was provided in the Bill of Rights but on the other hand I really don’t see the need in “civilized” society to carry a “peice”. Is this not why I pay taxes to employ police?[/quote]

Personally, I think anyone with a history of violent behavior should lose their right to bear arms, in much the same way they lose their right to freedom and their right to vote. I don’t think that the constitution says anything about which rights can or cannot be revoked.

With regard to the police, the Supreme Court says they are not there to protect you from crime, they are there to help solve crime. I’ll search for the case, someone else might know it. The point is, nobody is responsible for protecting you from criminals but you. If the government takes away your right to own a firearm, does that make your job easier or harder?

[quote]LIFTICVSMAXIMVS wrote:
I seriously want to know. I have conflicting issues with the 2nd amendment becasue on one hand I understand the fear with which it was provided in the Bill of Rights but on the other hand I really don’t see the need in “civilized” society to carry a “peice”. Is this not why I pay taxes to employ police?[/quote]

The second amendment is there to protect you FROM the police.

Noah Webster: “The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops”–1787

mike

[quote]StreetRoc85 350 wrote:
i am a very avid supporter of the second amendment. i have a concealed weapons permit and my 9mm is like my mastercard, never leave home without it! i carry absolutly EVERYWHERE except airports and courthouses. i dont feel like im 10 feet tall just because im packing, but then again i never feel unsafe or nervous either. i go wherever i want and i do so without fear.

a gun is a tool just like anything else. use it wisely, and it will protect you. misuse it, and youll wind up in jail or in a casket. i really dont care what the liberal democratic pussies want to say about guns or say about me for carrying a gun. there is just something reassuring about the feel of that cold chunck of metal resting under my waistband.

i also own a romanian AK-47, a Tec-9, and many other firearms that have been demonized by the ignorant media. if you want to try and take them from me, you better send at least 31 people because i have 30 of you covered and thats just until i grab my next mag!

a gun in the hand is worth more than a cop on the phone! [/quote]

Good deal. I open carry my Beretta 96. I would prefer not to ask permission from the gov’t and pay to be licensed to exercise an enumerated right. I also don’t think it makes me a badass, actually I think it looks rather the opposite. I open carry for the same reason I am a first responder and the same reason I lift. I am a prepared citizen that can respond to violence, or to provide first aid as needed.

mike

[quote]Zap Branigan wrote:
FightinIrish26 wrote:
Someone explain this to me better… they banned handguns inside one’s house?

yes. Provate ownership is illegal in DC therefore only criminals have guns in DC.

[/quote]

That is fucking ridiculous, and I’m glad that ruling got struck down.

Another victory for the NRA (hopefully).

God bless the second amendment…

[quote]LIFTICVSMAXIMVS wrote:
So does this mean that everyone has the right to keep and bear arms? If the right of the people to keep and bear arms shall not be infringed upon does this mean convicted felons as well. There is no provision stating otherwise. If the State can regulate who can keep and bear arms is this not a conflict with the constitution?

I seriously want to know. I have conflicting issues with the 2nd amendment becasue on one hand I understand the fear with which it was provided in the Bill of Rights but on the other hand I really don’t see the need in “civilized” society to carry a “peice”. Is this not why I pay taxes to employ police?[/quote]

No. Guns are the ultimate check and balance, and no “civilized” society should be without them, lest they enjoy their government dicatating everything to them.

Gun control isnt about guns, its about control.

Lets take a look at some of the other politicians that advocate strict gun control…

Damn… And I thought New Jersey was bad.

[quote]Cunnivore wrote:

If the government takes away your right to own a firearm, does that make your job easier or harder?
[/quote]

I don’t know. I’ve never needed services from the police. I have never need a pistol. I do not like guns nor do I like being around people who carry guns. This is not because I am afraid of an inanimate object but because I fear the people that wield them. The system of regulation, being what it is, is imperfect.

Having served in the military I am kind of confused at the second amendment. Firearms are useless in the hands of individuals to protect themselves from “the government” without a well regulated militia to support them–and even then you don’t stand a chance against the Union–just ask any Southern Rebel. At best owning a few rifles is just a psychological refuge that does nothing to offer actual protection.

[quote]LIFTICVSMAXIMVS wrote:
Cunnivore wrote:

If the government takes away your right to own a firearm, does that make your job easier or harder?

I don’t know. I’ve never needed services from the police. I have never need a pistol. I do not like guns nor do I like being around people who carry guns. This is not because I am afraid of an inanimate object but because I fear the people that wield them. The system of regulation, being what it is, is imperfect.

Having served in the military I am kind of confused at the second amendment. Firearms are useless in the hands of individuals to protect themselves from “the government” without a well regulated militia to support them–and even then you don’t stand a chance against the Union–just ask any Southern Rebel. At best owning a few rifles is just a psychological refuge that does nothing to offer actual protection.[/quote]

very possible. however it does give me peace of mind to know that if shit does ever hit the fan and i need to make use of my “heavy duty toys” at least ill be taking some people with me on my way down!