Category: 
2nd Amendment Blogburst – Notes and quotes from all over in this eventful week: 3/7/2007 – 3/13/2007
3/13/2007
Why the D.C. Circuit affirmed the right to bear arms.
Hopefully This is the Death of SB43
Looks like the Bradys aren’t going to get the vote they needed for SB43 (the worst AWB I’ve ever seen…since it also would have banned every semiauto pistol in the world).
Call him and thank him…even if you don’t live here in MD. Why? MD is ground zero for the Brady Bunch. They’ve told me as much in person.
I’m fighting them here so you don’t have to where you are.
Militia Watch At The Washington Post: Christopher Fotos looks at the manner in which the WaPo treats militias and the Second Amendment. Soundbite – “it’s not called the Bill of Privileges.”…
If you haven’t heard, the Roanoke Times did something incredibly stupid the other day. They published the names of every concealed carry holder in the state of Virginia on an internet database… complete with home address.
The database has since been taken down, but there’ve been no assurances that it will stay offline.
I’m still trying to think of a reason the paper would do this, other than “we don’t like guns, we have the information, so let’s put it out there.” Interestingly enough, one of the guys at the Poynter Institute (not exactly known as a hotbed of 2nd amendment support) also thought it was an odd thing to do.
The paper, in its editorial about the database, also compared registered sex offenders to legal concealed carry holders. Gee, thanks guys. At least now we know where you’re coming from.
Saul Cornell Receives a Professional Whuppin’ (h/…
Saul Cornell Receives a Professional Whuppin’ (h/t: Geek with a .45 who emailed me the link!) Professor of Law Stephen Halbrook has apparently had his fill of Associate Professor of History Saul Cornell and his attempt to rewrite history in the effort to convince people that the Second Amendment wasn’t written to protect an individual right to arms. For those unfamiliar, Associate Professor
The Jabberwocky World of Saul Cornell. Here he is…
The Jabberwocky World of Saul Cornell. Here he is again! Associate professor of History Saul Cornell of Ohio State University and its “Second Amendment Research Center at the John Glenn Institute” has published a new tome on the topic of just what the Second Amendment doesn’t protect. Unsurprisingly, it’s getting rave reviews (I seem to remember that Michael Bellisile’s Arming America got
Will the Supreme Court take the case? One aye. one nay.
My thoughts: coin flip, with a sleight favorite to yes.
People keep pointing out that there is now a divide among the circuits. Well, there has been since Emerson, which concluded there was an individual right to arms. The Supreme Court didn’t take it then. But now we have some new judges and one of those (the chief justice) understands Miller. We’ll see.
Meanwhile, the opposition lies and misleads.
The antis are spinning this one as hard as they can. I think I know why: It’s dangerous now. Years ago, if this case made it to the SCOTUS, I don’t think they’d have upheld individual rights. Today, I think they might (Scalia, Roberts, Alito, & Thomas are likely yays – and surely they could pick up one more).
Pro-Gun Progressive concurs:
Seems they’re really angling for the SCOTUS showdown. I’m not entirely uncomfortable with the idea; while I part ways with Alito, Roberts, Scalia, and Thomas on a lot of issues, I have to think we’re in good shape with those four votes re: the RKBA.
Publicola has some issues with Parker.
My Take On Cato’s Take on Parker v. DC
3/12/2007
Seems they’re really angling for the SCOTUS showdown. I’m not entirely uncomfortable with the idea; while I part ways with Alito, Roberts, Scalia, and Thomas on a lot of issues, I have to think we’re in good shape with those four votes re: the RKBA. We only need one out of Souter, Kennedy, Ginsberg (from what I hear, she’s pretty much in the collectivist 2A interpretation camp…ugh), Breyer, and Stevens. My uneducated guess would be that Kennedy and Breyer are our best hopes there. Someone more knowledgable about how the various justices line up on individual versus the collectivist nonsense (I mean really, people, come the hell on…why would the Founders write an Amendment whose meaning is that the state can’t tell the STATE it can’t have firearms? Clearly the meaning of the “people” in the 2A is NOT the state. If they wanted it to say “you can have a gun if you’re in uniform” or “you can have firearms if you represent the state”…it would flippin say that).
People have noted that Parker represents a real gamble. We could lose at the SCOTUS. We could lose big. They might rule that you don’t have a right to a firearm unless you’re an agent of the state, and that essentially any gun control law, no matter how confiscatory and draconian, is legit if a legislative body approves it.
That would have a few consequences, not the least of which would be the end of the Democrats’ newfound power in Washington; they damn well know that, despite the stupid sounding press clips from Carl Levin and Nancy Pelosi you’ve probably seen. If you think the backlash against the Clinton era AWB was bad for them, wait until the Brady Bunch and the Ceasefire Maryland harpies are popping champagne inside the Beltway and state legislatures in anti gun states start confiscating guns left and right; wait until the 2A truly is gutted, and the NRA points out to the 80mil+ gun owners in the US that there’s now caselaw from the highest court in the land saying you conceivably could be forced by the government to hand them all in.
It would decimate the Democrats for a generation. Maybe the Bradys will think about that before they pick this fight? They could win the battle and lose the war. Yup, the war isn’t just us vs. them in front of the SCOTUS.
The civil rights movement wasn’t stopped by Plessy vs. Ferguson. It wasn’t stopped by Orval Faubus and Byron de la Beckwith and every other Dixiecrat bigot who at certain times actually represented the majority opinion of their constituents. Despite setback after setback, people fighting for everything from gay marriage to legal medical marijuana to every other personal freedom you can think of have had to soldier on against negative results at the legislative level, polls and public opinion stacked against them, etc.
I’m quite confident that the backlash against an anti-individual freedom 2A ruling would be of similar magnitude. Greater, probably–gun owners are black, white, Asian, Hispanic, gay, straight, liberal, conservative, you name it. That ubiquitous thirst for freedom isn’t going to be squelched by five folks in black robes.
From the Brady Bunch:
“The 2-1 decision of the U.S. Court of Appeals for the D.C. Circuit in Parker v. District of Columbia striking down the District of Columbia’s handgun law is judicial activism at its worst. By disregarding nearly seventy years of U.S. Supreme Court precedent, two Federal judges have negated the democratically-expressed will of the people of the District of Columbia and deprived this community of a gun law it enacted thirty years ago and still strongly supports.
“This ruling represents the first time in American history that a Federal appeals court has struck down a gun law on Second Amendment grounds. While acknowledging that ‘reasonable restrictions’ to promote ‘the government’s interest in public safety’ are permitted by the Second Amendment, the two-judge majority substituted its policy preferences for those of the elected representatives of the District of Columbia.”
Yeah, when you lose, lie.
You can call it “judicial activism”, you can call it “disregarding precedent”, you can call it your Aunt Sally.
What last Thursday’s U.S. Third District Court of Appeals ruled was a return to the original intent of the authors of the Constitution. Washington D.C. can no longer ban gun ownership, because that is un-Constitutional. We knew it all along, and at last the third branch of our government has started to come to its senses.
I urge everyone to read the court’s decision, if you haven’t already done so. (Ignore the dissent: it’s such crap it wouldn’t even have made it through my Philosophy I [Logic] class back in 1972.)
It’s long, but worth every minute. Oh hell, here’s just one part, to whet your appetite:
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.
Yeah what he said.
[pause to allow the thunderous cheers, huzzahs and applause to die down]
And now, amid the rejoicing, let’s remember something. To quote Winston Spencer Churchill: ”This is not the end. It is not even the beginnning of the end. But it is, perhaps, the end of the beginning.”
This case is going to go to the Supreme Court, because there is a complete split in opinion between two Appellate Courts—the Third and (surprise surprise) the Marxist Ninth—and the Supremes will have to weigh in.
Not that I care.
The courts might still need to decide, amidst ponderous legal ponderings and such, whether the Second Amendment enumerates a collective or individual right; but from the beginning we’ve known it was, always, about We The People and not They The States.
In the meantime, we need to roll up our sleeves and get back to work. There’s a whole generation of new shooters to teach, folks.
DC District Court overturns the DC gun ban.
As I noted Friday, the Federal District Court for DC ruled for some DC citizens seeking to be able to have *serviceable and usable* firearms in their homes – something the DC gun law prohibits, requiring what weapons the DC council reluctantly allows citizens to own to be disassembled or gun-locked, with the ammunition stored separately from the weapon. In other words, the most common peaceable use of a firearm in your home – self-defense, is defacto prohibited.
The ruling observed, “The Second Amendment would be an inexplicable aberration if it were not read to protect individual rights as well.”
The three judge panel split 2-1 on the issue. Senior Judge Laurence H. Silberman wrote the majority opinion, which was supported by Judge Thomas B. Griffith. Of peculiar interest is the tortuous logic of the dissenting judge, Judge Karen LeCraft Henderson.
She asserted a legalistic defense of the statute, using a variation of the “depends on what the “meaning of is” is, argument, so nobly advanced by President Clinton while lying to federal officials during an investigation of a non-crime (oops, conflating my annoyances, aren’t I?): She essentially argued that the Second Amendment doesn’t apply to the District because it isn’t a State. So, I guess the DC council can start censoring the Washington Times now, too. And block access to Fox News in the District. Not to mention the DC National Guard can be quartered in citizen’s homes, Liberalism can be established as the Official Religion of DC, and the DC police could implement those warrantless searches (hey, send ‘em to Representative Jefferson’s office – oh, wait, he’s a Dem, never mind), put Ronnie Earl in charge of the Prosecuting Attorneys office, so that they can try people as many times as it takes to finally find a jury that will convict (or implement a Star Chamber and skip that whole jury thing anyway), suspend that Habeas Corpus, set million dollar bails for Republicans with parking tickets, break gun-owners on the wheel in front of City Hall, disparage other rights not mentioned and arrogate unto itself ultimate executive power, except, of course, when utilizing the rotating executive position of an anarcho-syndicalist commune when it suits their purpose.
(gasping intake of breath).
Gad, one wonders how she managed that with a straight face. Well, she didn’t, really – they dumped that out on Friday and she probably skipped for the Hamptons.
Significantly, to my eye, in terms of the nuance, she seemingly surrenders (albeit reluctantly and mounts this rear-guard defense so she’ll still get invited to the “good” parties or something) on the merits of the individual right.
DC Mayor Fenty is predictably outraged that the court dare overturn a law that had been “unquestioned for over 30 years.” He added, “Today’s decision flies in the face of laws that have helped decrease gun violence in the District of Columbia,” he said. “The ruling also turns aside longstanding precedents and marks the first time in the history of the United States that a federal appeals court has struck down a gun law on Second Amendment grounds.”
Heh. Applying the Mayor’s logic, slavery would still be legal in the District. I know, low blow, but sometimes “reductio in absurdum” is a useful analytical tool. I’m also not sure that he’s correct on the last bit, either. And if it *is* true – I am moved to say, “Yeah? So?” There has to be a first time for everything, and I would note that when it’s not his ox being gored, he and his party are happier’n pigs in poop when Federal courts do things like this for the first time. Sauce for the goose, Mr. Mayor.
Given the statistics on DC gun violence, one has to wonder where the Mayor finds support for his assertion that those laws helped reduce gun violence in the District.
The District has some of the nation’s strictest gun laws. Those statues forbid ownership of most guns that were not registered before 1977. Rifles and shotguns must be kept stored unloaded, disassembled or with a trigger lock. The ammuntion must be stored separately.
Yet people still shoot people. Oddly enough, the people who do most of the shooting are people not known for, um, obeying laws. Strangely, despite the admonishment of the DC Council, they continue to act as they see fit, anti-social or not. One would think they were purposfully violating the law for some reason, and not properly in awe of it. Obviously, passing another law telling them that it’s illegal to not obey laws, would be an appropriate response.
In 2005, 157 of the District’s 196 homicides involved guns. That’s, what, 80 percent? That percentage has remained relatively consistent since 2001.
FBI crime statistics for 2005 show 10,100 of the country’s 14,860 homicide victims, or 68 percent, were killed by guns, making disassembled/locked-gun DC a haven of safety. Oh, wait – it’s not. And the police are saying that violent crimes involving guns in the District are on the upswing, while all other violent crimes are decreasing. One would also like to know who is shooting whom… therein can lie many clues as to which strategies, including tool control, might better attack the issue. If it’s gang-bangers shooting gang-bangers, then perhaps addressing those issues which cause gang-bangers to shoot each other (and catch innocents in the cross-fire) might be a better approach, rather than just passing another law that only the lawful will obey…
I think I like this comment best, however…
Paul Helmke, president of the Brady Campaign to Prevent Gun Violence, blathered that the decision represents “judicial activism at its worst.”
“By disregarding nearly 70 years of U.S. Supreme Court precedent, two federal judges have negated the democratically expressed will of the people of the District of Columbia and deprived this community of a gun law it enacted 30 years ago and still strongly supports,”Heh. Hoist on your own liberal petard. Note for Mr. Helmke – this is *exactly* the template the Progressives have followed when they couldn’t get what they wanted legislatively.
Sauce for the gander, Mr. Helmke.
I only took a little time off and I feel like I have been asleep for 20 years. We are now deep in catch up mode.
First, and most significantly is the Parker decision out of D.C.:
Alphecca:
Ludicrous Reaction to DC Ruling
Amendment II: D.C. ‘gun control’ ban shot down in court;
The AnarchAngel: DC Circuit Court gets it absolutely right
The Bitch Girls
Blogonomicon: The Hatch bill and Parker vs. D.C.
…a republic if you can keep it goes tongue-in-cheek in What do you mean – criminals don’t get their guns…legally?
A Keyboard and a .45 blogs Ethics Training, Lessons Learned From History.
And has a Texas Castle Doctrine/Stand Your Ground Law Update.
Alphecca has More on Bill Richardson.
Points to a Canadian fighting an American fight: Fighting the Maryland AWB.
Blogs Fred Thompson on Gun Control
And while Jeff is presidential: Romney Still Dancing Around Gun Control
Much more to come, a little later.
3/11/2007
The plaintiffs who brought down D.C.’s gun ban
Here’s a WaPo profile. Cheers to them all. *** Previous: Second Amendment victory in D.C….
I’ve already covered his voting record on gun control rather extensively and he comes out as pretty good in my book except for the one lapse regarding the AWB. Follow that link for details. Anyway, I found this article rather…
The Second Amendment : As Legal Analysts, the WaPo Editors Are Halfway Decent Journalists
In the wake of the D.C. Circuit’s recent decision on the meaning of the 2nd Amendment, the Washington Post is beside itself, and would presume to explain to the federal judges how they got it wrong:IN OVERTURNING the District of…
New to my blogroll — new to blogging — is Armed Canadian. He’s living in Maryland and has been providing written testimony to the committee hearings into SB 43, the proposed ban on “assault weapons.” Naturally, he’s against the ban…
3/10/2007
A Court Goes Off The Reservation
Over at QandO blog, McQ takes note of the Washington Post’s alarm that D.C.’s gun laws were struck down, and explains how state constitutions drawn up at the birth of the nation help clarify the Second Amendment.
Unsurprisingly, the Post threw stuff at the wall hoping some would stick:
Mayor Adrian M. Fenty (D) counters that argument with the sad record of what results from a proliferation of guns. As he points out, more guns mean only more violence, and the city already has too much of both.
What DC does not have is handguns and ready long guns at the disposal of its law-abiding citizenry. Due to DC’s restrictions only criminals have these, and as the paper notes they’ve been making good use of their monopoly.
I wonder if the Washington Post was perhaps equally concerned about the generic precedent expressed by this dangerous misuse of the courts to uphold the Constitutional rights of We the People. In the political sphere where the Post plys its trade, that’s not how courts are applied.
For the rest of us, it’s fortunate the Post and its fellow travelers delayed their own debut until the American nation got on its feet; otherwise we might never have arrived at a republic to keep.
In a stunning and historical decision, a federal appeals court has ruled that D.C.’s ban on handguns in the home is unconstitutional.
This is a huge victory for gun rights, as the decision recognizes an individual right to bear arms. Predictably, D.C. Mayor Adrian Fenty is “disappointed” and “outraged” by the decision, stating, “It flies in the face of laws that have helped decrease gun violence in the District of Columbia.”
It’s true that gun violence has decreased in the District, but it remains one of the country’s most violent cities. And for crying out loud, the ruling merely allows D.C. residents to have guns in their homes; it didn’t even address carrying firearms in public. So the point remains: D.C.’s gun ban has done virtually nothing over the years to reduce crime in any meaningful capacity, much less create an atmosphere where residents feel they’re empowered to protect themselves from violent criminals. The least D.C.’s “leaders” could do is try something new.
Here is the actual ruling, via Radley Balko, who also notes that, mysteriously, the NRA has at every step fought the suit opposing the ban. Balko shares his thoughts on why this might have been, and if he’s even half right I’ll be canceling my NRA membership immediately.
I predict a 5-4 decision by SCOTUS in our favor — the Second Amendment is an individual right. I’ll explain why but first… I want to impress upon those who don’t normally follow gun rights just how important a decision…
Our old friend the Second Amendment awoke from a long slumber today, making an appearance in a D.C. Circuit Court of Appeals decision that states:
To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms.
I agree, though it’s unusual to hear a modern court saying it so forthrightly.
This may be headed for the Supreme Court. Stay tuned.
3/9/2007
In a recent post, I discussed in detail the debate over what the Second Amendment means to individual citizens. The summary, from a lawyer’s point of view, is that we don’t know for sure, because an absolute legal ruling has never been issued. Much of the Left claims that the Second Amendment means nothing. A single bad ruling from the Supreme Court could effectively codify their despotic vision into law, setting the stage for seizing private weapons.
This report in today’s news could be an important milestone. In a 2-1 decision, a U.S. Appeals Court for the District of Columbia has overturned the DC gun ban. The court ruled that the right to bear arms is “not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued intermittent enrollment in the militia.”
In other words, in the opinion of this Court, the Second Amendment acknowledges YOUR right to be armed. You may think this is obvious and that any other opinion would have been a gross offence against common sense and decency. But, legally speaking, the question had been undecided.
This ruling does NOT end the issue. This is a regional court ruling. Only a Supreme Court ruling would settle the legal argument for the nation.
(If the Supreme Court were to favor the Leftist despots, we would probably immediately go to work on a new Amendment to set things right. The wording I would suggest would be: “A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms, shall not be infringed….AND THIS TIME WE MEAN IT!” But let’s hope we never have to face that contingency.)
So the next question is, will this ruling be appealed to the Supreme Court? If so, it will be a very important case to watch. If not, it will remain a positive precedent, but not necessarily a definitive one.
Federal Court Overturns D.C. Gun Law
Big news out of the nation’s capital today, where the U.S. Court of Appeals for the D.C. Circuit struck down 2-1 the District’s handgun ban as a violation of the Second Amendment. Lots of reaction from the blogosphere, which I…
DC Circuit Court gets it Absolutely Right
I couldn’t imagine a better statement about the right to keep and bear arms coming from any court in this land (emphasis mine): 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
Light a Seegar, it’s the Best Birthday Present EVER…
Light a Seegar, it’s the Best Birthday Present EVER!. Mrs. Baker’s little boy was born 45 years ago this day, and today the U.S. Court of Appeals for the District of Columbia gave me the best birthday present a gun-nut could ever want: A decision overturning D.C.’s draconian gun-ban on the grounds that the Second Amendment to the Constitution protects an individual right to arms. If you’ve not
The Federal Appeals Court today struck down the ban. A copy of the decision can be found here.
Remember you read it here first.
The first paragraph in the decision says it all: “Appellants contest the district court’s dismissal of their complaint alleging that the District of Columbia’s gun control laws violate their Second Amendment rights. The court held that the Second Amendment . . . does not bestow any rights on individuals except, perhaps, when an individual serves in an organized militia such as today’s National Guard. We reverse.” Also interesting (p. 57): the court clearly recognizes that restrictions are unconstitutional when they prevent guns from being used in self-defense. The Appeals court granted summary judgement for the plaintiffs.
In the dissent, I wonder if the Judge understands that her decision (p. 3) implies that people should be able to own machine guns. They are surely weapons used in militias.
I have no doubt that this is going to the US Supreme Court. This is actually a very high risk gamble. IF the gun ban is struck down, it will have major implications. If not, no gun regulation will be deemed “unreasonable.”
UPDATE: Fox News has posted a useful discussion here.
D.C. Circus Overturns D.C. Gun Ban – UPDATED
A three-judge panel of the D.C. Circuit Court of Appeals has just overturned the longstanding (since 1976) ban on private gun ownership in the District of Columbia, and has also overturned the requirement that even those guns allowed must be kept in a partially disassembled condition locked in a safe.
The ruling was 2-1; the majority opinion appears to have been written by Reagan-appointee (1985) Judge Laurence Hirsch Silberman; the dissenting vote was by Karen LeCraft Henderson, a Reagan-appointee as a district judge, 1986, and a George Herbert Walker Bush-appointee to the circuit court in 1990.
UPDATE: The third judge is Thomas Beall Griffith, appointed by George W. Bush and confirmed by the Senate in 2005; and the opinion is here (hat tip to Blake Dvorak on Real Clear Politics).
The Associated Press characterizes the majority and dissenting opinions thus:
In a 2-1 decision, the judges held that the activities protected by the Second Amendment “are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued intermittent enrollment in the militia….”
“The district’s definition of the militia is just too narrow,” Judge Laurence Silberman wrote for the majority Friday. “There are too many instances of ‘bear arms’ indicating private use to conclude that the drafters intended only a military sense.”
Judge Karen Henderson dissented, writing that the Second Amendment does not apply to the District of Columbia because it is not a state.
That last argument — if that’s really what she said — is preposterous, since that would open the floodgates to deny incorporation within D.C. of a host of other rights guaranteed by the first ten amendments to the Constitution… including freedom of speech, freeedom of religion, the right to be free of unreasonable searches and seizures, and so forth. I can’t imagine the Court taking that tack; but I can very much imagine AP mischaracterizing the core of Judge Henderson’s dissent: She might have written something much more intelligent.
The New York Times truculently complains about this decision, as –
Most federal appeals courts have said that the amendment, read as a whole [by which they mean only reading the subordinate, dependent clause -- the Mgt.], protects only a collective right of the states to maintain militias — in modern terms, the National Guard. But in yesterday’s decision, the majority focused on the second clause [that would be the actual subject-verb-predicate of the sentence -- the Mgt.], saying that the amendment broadly protects the rights of individuals to own guns — an approach that has been embraced by the Justice Department and by some constitutional scholars ["some" meaning in this case "virtually all" -- the Mgt.].
It may be true that “most federal appeals courts” think the Second Amendment protects the rights only of members of the National Guard; but if so, that’s because most federal appeals courts have racked up a dismal record comprehending the only Supreme Court case to address the issue: U.S. v. Miller, 307 U.S. 174 (1939).
In Miller, the Court held that the Second Amendment’s purpose was to ensure that we would always have a ready supply of trained and armed citizens to be called up as the militia. They ruled, therefore, that the amendment only applied to the kind of weapons ordinarily in use by individual soldiers in armies and militias.
Jack Miller, suspected of robbing banks, was arrested under the National Firearms Act of 1934 for transporting a short-barrelled (or sawed-off) shotgun across state lines without having purchased a special stamp from the government. He defended himself on Second Amendment grounds and usurpation of state police powers, claiming the NFA was unconstitutional; the judge agreed and struck down the law.
The United States attorney appealed to the Supreme Court, which reversed and remanded the case back to the district court for further proceedings (which never took place). The Court issued three substantive holdings:
That the Act was a federal revenue act, therefore within the jurisdiction of Congress;
That the Second Amendment only protected the keeping and bearing of military-style weapons;
And that short-barrelled shotguns did not qualify.
(The prosecution actually argued that Miller did not qualify for Second Amendment protection because he was not a member of any organized militia, but the Court considered and rejected this argument. Instead, they wrote a lengthy analysis showing that “the militia” consisted of all military-aged men — which refutes the misunderstanding that Miller restricted gun rights to members of the National Guard.)
The finding about short-barrelled shotguns was simply wrong; such guns are widely in use in military units today (including ours) and have been since long before Miller. Alas, Miller failed to show up at his Supreme Court hearing, having inconviently been murdered in prison; his attorneys also failed to show up, their case being moot. (The co-defendant, Frank Layton, also didn’t show up; but I’m not sure why.)
Thus, no defense argument was made. Had there been one, they could easily have demonstrated that both machine guns and short-barrelled shotguns were in widespread military use, and (one presumes) the district-court decision would have been upheld.
Since then, appellate court after appellate court has wrongly — and I believe deliberately and with malice aforethought — misinterpreted Miller as having claimed that only the gun rights of members of the militia were protected… and also that “the militia” consists of the National Guard.
If today’s Court holds to the precedent of Miller, they must rule that the right to possess a pistol, which is certainly part of the ordinary accoutrements of ordinary soldiers in modern armies and militias, is undeniably protected by the Second Amendment; and that this right inheres in all individual persons, not just those in the National Guard.
The Court must reach the same conclusion textually if they examine the very words: the phrase “the right of the people” is never used in any other part of the Constitution to mean “the right of the states,” but always as an individual right enjoyed by each individual person, subject to reasonable restrictions (for example, you can prevent convicted felons and the dangerously insane from possessing guns, just as you can restrict their liberties in other ways).
But if the Court holds that the D.C. law is unconstutional, it would also mean that the decades-long federal prohibition against possession of sawed-off shotguns and of machine guns is likewise unconstitutional. I will listen eagerly for the weeping and the wailing and the gnashing of liberal teeth if the Court is bold enough to carry this decision to its logical end.
In fact, the same decision should also toss out all state or federal laws prohibiting concealed carry, except in extraordinary circumstances, such as in a court room or other governmental building. Concealed carry is much less disruptive to civil life, and I prefer it.
This is a very good case to finally have it out in the Supreme Court; and this is a very good Court to resolve such a case. I don’t know how Justice Sandra Day O’Connor ruled on gun-rights cases, but I wouldn’t be surprised if Justice Samuel Alito were more open to the constitutional argument. Justice Antonin Scalia may not like people owning or carrying guns; I have no idea. But he certainly believes in following the actual words of the Constitution; same with Justices Clarence Thomas, Alito, and Chief Justice John Roberts.
I’m pretty sure that the usual suspects would vote to overturn the D.C. Circuit: Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer, and David Souter. As usual, the swing vote would be Justice Anthony Kennedy. (Power Line and Patterico know much more about such matters than I; I hope they will comment.)
There is no reason that “reasonable restrictions” could not include demonstrated proficiency with whatever general class of weapon you possess (not of each and every possible model within the broad category; that would be quite unreasonable). Thus, a person should be able to “qualify” with a pistol, a rifle, or even a select-fire weapon capable of firing continuous rounds with a single trigger-pull (a machine gun). Thereafter, the qualifying person could not be prosecuted simply for possessing or carrying such a weapon — though carrying a gun openly could still be prohibited as “brandishing” or “threatening.”
But I long to see a final resolution of this long-term legal controversy. More than anything else, the right to keep and bear arms is a hallmark of a free people… and I want to know whether we Americans are still free.
Is Rudy’s gun-control stance rendered moot through jurisprudence? 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…
Appeals court strikes down D.C. handgun ban
In a landmark legal victory for opponents of gun control, a federal appeals court Friday struck down a District of Columbia ban on keeping handguns in homes as a violation of the Second Amendment’s right to keep and bear arms.
NOW EUGENE VOLOKH NOTES a Second Amendment error in The Washington Post. It’s like they’re not even trying to get this stuff right….
Appeals court overturns DC handgun ban
A federal appeals court overturned the District of Columbia’s long-standing handgun ban today, rejecting the city’s argument that the Second Amendment right to bear arms applied only to militias.
Judge Karen Henderson wrote (on page 11):
“The Second Amendment’s “character and aim” does not require that we treat the District as a State. The Amendment was drafted in response to the perceived threat to the “free[dom]” of the “State[s]” posed by a national standing army controlled by the federal government.”
I love the say she directly quoted individual words from the Second Amendment, and then proceeded to knowingly change the words – and their meanings – inside the quotation marks. I’m surprised she didn’t take the liberty of de-capitalizing the first “S” in “[s]tate[s]” to further demonstrate how nonsensical her dissenting opinion really is.
Hell, why didn’t she just insert an [f] in front of “arms”, and put an end to this ongoing debate once and for all?
D.C. Handgun Ban Reversed By Federal Court
A longstanding ban on handguns in the nation’s capital was overturned by a federal appeals court, rejecting the argument that the Second Amendment right to bear arms only applies to militias. Mayor Adrian Fenty said the city will appeal.
EUGENE VOLOKH notes some factual errors in the New York Times’ coverage of today’s Second Amendment decision from the D.C. Circuit. UPDATE: Plus some interesting stuff from Blackstone on what that talk about “a free state” in the Second Amendment…
Unbelieveble! A federal appeals court reads the Second Amendment correctly
They wrote this, I didn’t: To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed…
Court Overturns D.C. Handgun Ban
A U.S. appeals court overturned Washington D.C.’s longstanding handgun ban, rejecting the argument that the Second Amendment right to bear arms applied only to militias.
The VPC Propaganda Machine Responds
In my earlier post on today’s ruling by the DC Circuit Court panel, I said:
Truth, liberty, and the respect for people’s rights won out over your loathsome campaign of hyperbole, deceit and fear-mongering. Deal with it.
So, who’s up for a little hyperbole, deceit and fear-mongering this evening?
I give you this pathetic attempt at intellectual discourse from the Huffington Post, written by gun-grabber extraordinaire, Josh Sugarmann, founder and executive director of the Violence Policy Center, one of the major anti-gun rights lobbying groups in the country.
Court to DC: Handguns for All!
Well, that didn’t take long. He couldn’t even make it past the title of the post without distorting the reality of the court’s decision.
[ADDED: On second thought, the title's a pretty good one, seeing how the criminal portion of the population currently enjoys unfettered access, via the black market, to all the guns they want. Paving the way for the law-abiding folks to arm themselves could, quite thankfully, lead to "handguns for all".]
This morning the United States Court of Appeals for the District of Columbia Circuit, in the case of Parker, et al v. the District of Columbia, overturned the District of Columbia’s handgun ban on Second Amendment grounds. Under the decision, which is contrary to the overwhelming weight of legal authority, District residents would now be allowed to keep handguns in their homes.
The “weight of legal authority” was so “overwhelming”, in fact, that he was forced to leave it in the car when he got to work this morning, so he was unable to to post a single reference to back up this assertion.
[ADDED: That would be, what? The "legal authority" of a governmental entity to enact and enforce unconstitutional laws that violate the rights of the citizenry?]
Since its enactment, overturning the DC handgun ban has been the Holy Grail for the National Rifle Association and its supporters.
Um…no it hasn’t.
Pending appeal, it looks like they may have finally achieved their goal. And if the case, which concludes that “the Second Amendment protects an individual right to keep and bear arms,” is heard on appeal by the U.S. Supreme Court, it has the potential to lay the groundwork for literally every local, state, and federal gun law in America to be challenged: from the federal ban on gun possession by felons to the ban on the manufacture of new, fully automatic machine guns.
Because, according to Mr. Sugarmann, things are better the way they are now in the nation’s capital, where the drug-dealers and carjackers – people not known for possessing too deep a respect for the law – can have all the guns they want, and their victims are left to defend themselves by honking car horns, blowing plastic whistles, and cowering in terror.
In a twist more disturbing than ironic, the court’s decision was issued the same day that a new study, Chief Concerns–Violent Crime in America: 24 Months of Alarming Trends, was issued by the Police Executive Research Forum (PERF). The study warned of increasing violent crime and the facilitating role of firearms…
So, let me see if I understand him correctly.
The chances of a defenseless citizen becoming a victim of violent crime, according to the study he’s choosing to cite here, are on the rise. And, he finds it somehow “disturbing” that a US Court would rule that these defenseless victims-to-be have a right to defend themselves???
In fact, the high rate of violent crime in the “gun-free”, peaceful Utopia of Washington DC, and the desire to protect themselves from said violence, were key components of the plaintiff’s case. From that last paragraph, now, it’s hard to tell exactly whose side Mr. Sugarmann is arguing for here.
But, let there be no doubt whose side he’s on.
While today’s decision is a dream come true for America’s gun lobby and gunmakers, it may mark the beginning of a long, national nightmare from which we will never recover as a nation.
Ah, yes, the “nightmare” of having free citizens walking the streets of America, and resting comfortably in their homes, able to provide for their own security without having to rely on the government to maintain their very existence.
Rosie, hold me! I’m scared!
My guess is, Sugarmann was under the impression that he could go to the Huffington Post blog to have his distorted viewpoint validated by the regular readers over there, an audience perhaps more friendly to someone with his anti-2A mentality. Or so he thought.
After reading the early comments left there, most of which seem to be grounded in reality and rational thought, I’m guessing he’s on the verge of joining Rosie O’Donnell for an extended therapy session. Or he’ll simply write a follow-up post, in which he dismisses these commenters armed, racist, redneck thugs of the Cheney/Halliburton Cabal.
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Finally, a federal court that can read. It is really not hard just read what the Founding Fathers said. They were absolutely, positively talking about an individual right. And guess what, DC’s crime rate will go down because of this. FACT: every state that has passed a right to carry law has seen its violent crime rate plunge. Every one.
Again a federal court has finally read the Founding Fathers thoughts on the 2nd Amendment.Let freedom ring! The end of the forcible disarmament of American citizens may be in sight. For far too long, the boot of civilian disarmament has been on our necks, but WE SHALL OVERCOME!
This is silly and hyperbolic, at best. Long national nightmare? Are you serious? Look at DC’s homicide rate. My numbers, from the 2005 FBI UCR, show it to be the fourth highest in the country, and that’s with a nearly total handgun ban. Clearly, gun control hasn’t made the life of the residents of DC any safer.
Oh, I didn’t recognize your name at first, then I looked up who you were. Nevermind, you’re never going to look at this from an open minded perspective.
“…the beginning of a long, national nightmare from which we will never recover…”
Obviously you’ve never read the crime section in the D.C. paper. Yeah, let’s ban guns…like we banned drugs! Hey, wait a minute, drugs availability is worse than ever. Here’s a tip – how about punishment for criminals.
Also, I notice that the first comment over there came in at 4:21 PM, and that the next five comments came over the next 45 minutes, up until 5:06 PM. Yet, not one comment posted since then, and it’s been over 2-1/2 hours now.
Surely, neither Mr.Sugarmann, nor the moderators at theHuffingtonPost, would be running away from a fact-based discussion on the subject matter at hand by shutting down comments on that post.
Naaaaah!UPDATE: Scratch that. Comments are still open. This one just came in.
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“Today’s decision flies in the face of laws that have helped decrease gun violence in the District of Columbia.”Could DC Mayor Adrian Fenty have made a dumber statement. Mr. Mayor, you live in the most dangerous city in America. Year in and year out, your city is the murder capital of the nation.
Well, not quite. In 2005, for instance, DC fell to #4 on the list. But, I digress…
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Your laws aren’t protecting anyone except the violent criminals who prey upon your defenseless citizens. The ruling of the district court today made those criminals’ jobs more dangerous.Where’s the fanclub, Josh?
The Right To Bear Arms is an Individual Right
At least if you can actually read the constitution, as the D.C. CIRCUIT apparently can: 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 …
JUST IN — This could be big news:
WASHINGTON — A federal appeals court on Friday overturned the District of Columbia’s longstanding handgun ban, issuing a decision that will allow the city’s citizens to have working firearms in their homes.In the ruling, the U.S. Court of Appeals for the District of Columbia rejected city officials’ arguments that the Second Amendment right to bear arms only applied to state militias.
In a 2-1 decision, the judges held that the activities protected by the Second Amendment “are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued intermittent enrollment in the militia.”
Check out the entire story at Fox News
UPDATE: It looks like the entire blog world is all over this story!
The 2-1 decision of the U.S. Court of Appeals for the D.C. Circuit in Parker v. District of Columbia striking down the District of Columbia’s handgun law is judicial activism at its worst. By disregarding nearly seventy years of U.S. Supreme Court precedent, two Federal judges have negated the democratically-expressed will of the people of the District of Columbia and deprived this community of a gun law it enacted thirty years ago and still strongly supports.
“This ruling represents the first time in American history that a Federal appeals court has struck down a gun law on Second Amendment grounds. While acknowledging that ‘reasonable restrictions’ to promote ‘the government’s interest in public safety’ are permitted by the Second Amendment, the two-judge majority substituted its policy preferences for those of the elected representatives of the District of Columbia.
Bleat, bleat.
Lies in bold.
Second Amendment victory in D.C.
Big news, in case you haven’t already seen: Appeals court overturns D.C. gun ban. 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…
From the Associated Press:WASHINGTON (AP) — A federal appeals court overturned the District of Columbia’s long- standing handgun ban Friday, rejecting the city’s argument that the Second Amendment right to bear arms applied only to militias. In a 2-1 decision,…
Think This Will Get Blogged Much?
*** POST UPDATED – SCROLL DOWN ***
From How Appealing (via Instapundit via Say Uncle):
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.
From the majority opinion (and the Department of “Well, No Shit!”):
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.
From Uncle:
Shocking: The people means, err, the people.
Go figure.
UPDATE: You’ve just gotta love this part (page 53):
The modern handgun—and for that matter the rifle and long-barreled shotgun—is undoubtedly quite improved over its colonial-era predecessor, but it is, after all, a lineal descendant of that founding-era weapon, and it passes Miller’s standards. Pistols certainly bear “some reasonable relationship to the preservation or efficiency of a well regulated militia.” They are also in “common use” today, and probably far more so than in 1789. Nevertheless, it has been suggested by some that only colonial-era firearms (e.g., single-shot pistols) are covered by the Second Amendment. But just as the First Amendment free speech clause covers modern communication devices unknown to the founding generation, e.g., radio and television, and the Fourth Amendment protects telephonic conversation from a “search,” the Second Amendment protects the possession of the modern-day equivalents of the colonial pistol.
Fuck yeah!
I think a trip to Wal-Mart for a celebratory ammo purchase is in order here, to be followed shortly thereafter by a celebratory range trip, to be followed shortly thereafter by a celebratory ammo purchase, to be followed…
Well, you get the picture.
Thanks to commenter Chris at Say Uncle for the heads-up. I haven’t read the decision all the way through yet. Also, can’t wait to see how, or if, the Boston Globe reports on this bit of news. I can hear the gears of the Sarah Brady Spin Machine spinning furiously as I type this.
UPDATE II: Speaking of the Sarah Brady Spin machine…
From the Washington Post:
Paul Helmke, President of the Brady Center to Prevent Gun Violence, issued the following statement: “The 2-1 decision of the U.S. Court of Appeals for the D.C. Circuit in Parker v. District of Columbia striking down the District of Columbia’s handgun law is judicial activism at its worst. …
With all due respect, Mr. Helmke (and I mean that in the most literal sense possible), go fuck yourself. Your side lost. Truth, liberty, and the respect for people’s rights won out over your loathsome campaign of hyperbole, deceit and fear-mongering. Deal with it.
… By disregarding nearly seventy years of U.S. Supreme Court precedent, two Federal judges have negated the democratically-expressed will of the people of the District of Columbia and deprived this community of a gun law it enacted thirty years ago and still strongly supports.”
As a commenter over at Homeland Stupidity noted:
The “democratically-expressed will of the people” was to make blacks drink out of separate water fountains, sit on the back of the bus, and go to substandard schools. The “democratically-expressed will of the people” elected Hitler to power for god’s sake.
FURTHER THOUGHTS on the D.C. Second Amendment decision mentioned below….
FURTHER THOUGHTS on the D.C. Second Amendment decision mentioned below….
We almost had to create a special category named “Fan-Freaking-TASTIC” especially for this post, since “Good News” doesn’t really do it justice. It would appear that a court of the land, the DC Circuit Court to be specific, actually took the time to, you know, read the 2nd Amendment [all emphases in the quotes ours]: To [...]
Lookit what the DC Circuit Court said in a gun decision handed down today…
…about the 2nd Amendment.
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.
Emphasis mine.
Read the decision here. I can’t wait for the Gun-Grabbing Senators to attack this piece.
I’ve not had time to read the whole thing, and I’m not a lawyer, anyway. The suit was brought by residents of DC asserting that certain DC gun laws infringed on their rights.
Court Rules Against DC Gun Ban
The decision can be found here.
And a quote from the majority opinion:
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.
Of course, this will be appealed, but it’s a nice way to start the weekend, isn’t it?
Is it quite cold there?
OMFG Idon’tquitebelievewhatishappening!
Parker v. DC
Courts rule for Individual Right interpretation.
I’m reading the decision. I’m sure I’ll spout off something later, but my further-eastern friends have more details than this behind-the-curve Californian.
teehee: (pg.10)
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.pg.14: the closest I’ve seen to “you’re an idiot”
At first blush, it seems passing strange that the able lawyers
and statesmen in the First Congress (including James Madison)
would have expressed a sole concern for state militias with the
language of the Second Amendment. Surely there was a more
direct locution, such as “Congress shall make no law disarming
the state militias” or “States have a right to a well-regulated
militia.”Pg 20 now. I’m laughing at DC and the VPC/Bradys/et al.
Pg 47 – The majority opinion seems to read Miller the right way.
Dissent – DC isn’t a “state” so it doesn’t count? Can I have it’s three electoral votes? I promise to use them wisely.
DC Gun Laws Struck Down!
Breaking news!
Quote:
—————-
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.”
—————-{I’m in a mtg, damnit, can’t chase this one around, or see what it means….}
Sweet smoking Jesus, is this the open door we’ve been praying for?
InstaGlenn’s an expert on SA jurisprudence so keep your eye on this post for updates, but even knowing as little as I do about Second Amendment law, I can tell you this is big. The Supreme Court hasn’t squarely addressed the question of whether the right to bear arms is an individual or collective right in almost 70 years, and even then they didn’t address it so squarely. But they might now: the D.C. Circuit is the most influential court in America next to SCOTUS itself and the author of the opinion, Laurence Silberman, is a conservative judicial icon who was considered for elevation when he was younger. His ruling cuts against the grain of most appellate case law too, as I understand it, and the Supremes abhor a circuit split. Combine all that with the fact that we might have a Democrat appointing new justices two years from now and there’ll be heavy pressure on Roberts, Scalia, Thomas, and Alito to take the case (which only requires four votes) and get a ruling on the books before the Court loses its conservative majority.
Of course, if they do take the case, Kennedy will vote with the liberals and rule that the right is collective, not individual. Sigh.
Say what you want about Bush vis-a-vis Reagan, but early indications are his justices will prove to be a lot better on balance than the Gipper’s. Scalia notwithstanding.
Exit
questionsuggestion: Go read the blockquote from the opinion at Howard Bashman’s site. Mangia!Update: Ace thinks this might make Rudy’s position on gun control moot. True — if the Supreme Court grants cert. If they don’t, it makes Rudy’s position even more important because other circuits are going to see gun-control challenges now that point to this decision. There’ll be probably be a split, but the split may not materialize until 2009. In which case it matters a whole lot what the next president thinks about the SA.
Update: The timetable may be even dicier than I thought. Volokh says the Supreme Court decision would come down four months before the election, assuming that cert is granted of course.
Second Amendent Guarantees an Individual, Not a Collective, Right!
How Appealing (via Glenn Reynolds)
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.
If this reaches the Supreme Court and is upheld there, it will be the most important ruling for the Second Amendment in America’s history.
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.
Which is why I despise stare decisis, despite the sniveling of the frightened for “consistency.” The Supremes and most other courts have been dead wrong in public just about every time they’ve approached the Second, and have employed tortured language, logic, and law to reach their decisions. To respect this reprehensible record of error simply because it was made is to make a travesty of not just law, but justice – and liberty.
And what I will say now will doubtless enrage many people, and I don’t care: It figures that it would be a woman who would oppose the individual right to keep and bear arms plainly guaranteed by the Second Amendment.
(via Glenn and others.) From How Appealing: 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…
In DC, circuit court has ruled that the second amendment means what it says. Individual rights. Woot! Volokh has some analysis. So does Kerr.
I’m still reading.
Update: Heh:
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.
Update: Now, the DC and the Fifth circuit hold an individual rights view. Other circuits hold the collective rights mythology. Looks like such a split will have to be decided by the supreme court.
Update: For those not familiar, here’s background info.
Update: They address the grammar of the second amendment and conclude what anyone with a basic grasp of English would conclude. Even references to commas.
Giggle: The District’s argument—as strained as it seems to us—is hardly an isolated view.
Shocking: The people means, err, the people.
Update: They get Miller right. Dissent is pretty weak. Well, I couldn’t make it past the first few pages due to all my giggling about states being people on page 63. Is Parker a state?
Update: Another good line (from Chris in comments):
just as the First Amendment free speech clause covers modern communication devices unknown to the founding generation, e.g., radio and television, and the Fourth Amendment protects telephonic conversation from a “search,” the Second Amendment protects the possession of the modern-day equivalents of the colonial pistol.
Update: One more interesting bit:
Reasonable restrictions also might be thought consistent with a “well regulated Militia.” The registration of firearms gives the government information as to how many people would be armed for militia service if called up. Reasonable firearm proficiency testing would both promote public safety and produce better candidates for military service.
3/8/2007
Not often you see any common sense on the 2nd Amendment from New Jersey, but here’s a nice piece from the Rutgers paper.
Randi Rhodes changes her position on the second amendment. Well, in that armed insurrection kind of way. I guess whoever’s political party is not in power is motivated to be pro-gun.
3/7/2007
I have always liked the wonderful City Journal magazine, and I also enjoy the writing of Steven Malanga, who is blessed with enormous amounts of common sense and wisdom. So his latest piece, on Mayor Giuliani, was a must-read for me.
Steve writes not as a conservative journalist (which he is), but as one who personally saw many of the changes Giuliani managed to achieve in the festering cesspit that was NYFC in the period 1960 – 1993. The list of achievements is highly impressive, especially when considering the entrenched opposition that was NYFC’s liberal- and welfare-encrusted culture.
Go ahead and read the piece now, before continuing below, because I’m going to be writing in a more or less stream-of-consciousness format as I try to puzzle out what Malanga’s article might mean for us, as (potential) Republican voters in 2008.
I must confess to an enormous amount of skepticism about Giuliani, and habitual Readers of this site will bear out that my attitude towards Hizzoner has been little less than hostile—most especially when it comes to Giuliani’s attitude towards guns, of course, because his social liberalism doesn’t worry me that much (other than as a potential turnoff for voters more conservative than I am).
I know that Giuliani’s style tends towards the authoritarian, but I also know that in a crisis, you sometimes need an authoritarian to get things done—witness his quick and decisive action on 9/11. Malanga also points out that while being Gotham’s mayor isn’t governing a state, it’s also true that NYFC’s operating budget is larger than most states, and the population ditto. So from that perspective, Giuliani has the “executive experience” covered, in spades (which is a huge factor for me).
Yeah, he pissed off a lot of people in NYFC, but frankly, I see that as a feature, not a bug, because there are a hell of a lot of people in the NYFC government and “ruling elite” who need pissing off.
Here’s my question: it’s clear that Giuliani was at least partially successful with a lot of the entrenched institutions (with the notable exception of the teachers’ unions), and managed to get a lot done.
Would that carry over to President Giuliani’s dealings with the U.S. Congress (who can be as feral, and as intransigent, as anything he ever dealt with in NYFC)?
And here’s where I worry about Giuliani. I have no problem with an executive whose management style is largely confrontational—it’s my own managerial style, after all—and there is no doubt that after eight years of President Mostly-Spineless, some confrontation is sorely needed.
But I fear that while Giuliani would fight for his own agenda items—once again, a Good Thing—he would ameliorate his position with the enemy, and might compromise on issues which may not matter to him, but which are dear to the conservatives he might have to rely upon to get into the White House. Such issues, of course, are ones like gun control/a fresh AWB, abortion and others where he is, let’s be honest, no conservative.
And here’s where Hizzoner needs to open his mind a little, because the United States of America is not NYFC—and non-issues in Gotham like gun control are very definitely hot-button issues in the rest of the country.
We know where Giuliani is going to vote or veto: issues like the War On Terrorist Bastards, welfare, government and budget management, he’s going to be very definitely on the side of the angels.
But a President has to cover all the bases with his supporters (or at least, the supporters who voted him into office), and not sell them down the river if the political calculus is that it would be relatively harmless to him. History is replete with examples of Republicans breaking campaign promises to conservatives, and being punished the next time the ballot boxes came out.
If I were to offer any advice to Giuliani, it would be the same as the principle which guides doctors: first, do no (conservative) harm.
In other words, do not further the gun control agenda, do not further the pro-choice agenda, and so on—just maintain the status quo in the sticky areas, and even if we’re not happy about him not being a supporter of those conservative issues, at least he won’t be making enemies of conservatives and becoming President Four Years (pace Bush 41 and tax increases).
Hint: if he has to partner with Ted Kennedy, Pat Leahy or Arlen Specter to get your legislation passed, it would be better to avoid it.
If he can pledge to do none of those things, he’ll be free to do all the other stuff he really wants to do (and which we want him to do, too): rein in government spending, keep taxes low or lower them still further (and veto any tax increases), fight crime (all crime, not just the easy stuff like the Mob and such), maintain a strong, no-nonsense foreign policy, and fight the War On Terrorist Bastards aggressively.
Ronald Reagan, sadly, is not available, and nor is Margaret Thatcher, so Guiliani is not Candidate Perfect. But we might have to make do with him.
If he doesn’t stab us in the back.
Gun Rights v. Property Rights in Utah
The state legislature in Utah is trying to balance two competing rights: the RKBA and the right to keep people with guns off your property. Actually it’s not as extreme as it sounds; what Utah wants to do is allow…
Alphecca blogs redefining freedom: IL: You Are Now A Criminal.
In different places: Women Arming Themselves in TN.
And New Jersey to Ban .50 Caliber Guns.
Blue Steel Democrats consider The Right to Bear Sporting Goods & the Oregon Constitution.
The Liberty Sphere gives a cursory look at The Hillary Thesis.
Live from the (upper) Texas Gulf Coast also found No Surprises Here, But Still Infuriating: NJ Proposes Ban on .50BMGs.
And on the IL AWB: Call Me Torn On This One.
Michelle Malkin points out Obama’s investment portfolio.
From the NRA:
The Real American Idol. If you know what a CMH is, you will want to read this. If you don’t, you should go read it.
Kansas: Dodge Drops Carry Ordinance
Employee Rights Bill Reintroduced In Florida
Texas: Bill Would End Gun Ban In Foster Homes
West Virginia May Ease Doe-Hunting Regs
Of Arms and the Law found a Media push in WI.
Oscar Poppa considers Neu Jerzee To Ban .50 Cal?.
Publicola ran a poll and posted the results, all while I was time challenged. Scroll down and read as you go. Some funny stuff.
Ride Fast & Shoot Straight has been doing as his name implies:
Rudy is pro-gun control when in California
N.J considers being CA stupid – banning the fifty
ATF getting heavy handed, again
Military weapons myths the gunbanners exploit
Help stop HR 1022, the so called “AW Ban”
EBR ban not popular with the people
SayUncle has been busy:
At least the ninth circuit is consistent
I can’t even get beyond the first paragraph because it’s so misleading
Hillary Clinton’s hidden thesis
Speaking of gun bills that have no shot at being passed
Tennessee Firearms Freedom Act
All assault weapons all the time
Shall Not Be Infringed blogs the differences between hunting and sniper rifles: When will they come for my hammer?
Snow Flakes in Hell finds continuing disention in Bloomberg’s ranks: Another One Gone – Mayor Wolf.
Disassembles gun grabbers in It’s About Power, Not Killing.
Writes about Some NFA Myths I’m Hearing.
And finally, asks Since when is it extreme …
The Ten Ring is going to Support Our Sport.
And blogs Gun Bans, the Numbers Don’t Add Up.
TheOtherSideofKim goes international in Then And Now.
Traction Control is confused about Texas Justice: Is There Something Wrong in Allen?
Posts NO to HR 1022, Assault Weapons Ban.
A New WarOnGuns Poll: Would You Carry Concealed Without a Permit?
David has also posted the latest Rights Watch: In Search of the Second Amendment.
And found I, Terrorist. I’m in there too. To whomever put it up, I will wear it like a badge of courage.
VCDL has called for action in the National Park Service situation:
Captain of a Crew of One: Let’s Roll
The View From North Central Idaho: Time to educate a bigot
Jim Zumbo:
Blogonomicon: Zumbo gets it
The Gun Blogs: Zumbo Forgiven?
Ride Fast and Shoot Straight: Zumbo, cont.
The Smallest Minority: I’m Sorry the Lesson Cost You So Much, Mr. Zumbo …
Snow Flakes in Hell: Surprise!, From The Comments, Zumbo’s Sincerity, I Second That, Return of the Zumbo Zombie
SayUncle: Another Letter from Zumbo, Not the WaPo, Zumbo returns, The rift
The Ten Ring: Ignorance Leads To Bigotry
TriggerFinger: Zumbo begins the long, slow climb back…
The War on Guns: Underkill
At least the ninth circuit is consistent
Not only does the second amendment not mean what it says, neither does the first.
