[Janq]

For folks not from DC or the metro area and/or who are not up on east coast gun politics this news is FREAKING HUGE!!!!!!!!!!!1!

There is a posting about this at CombatCarry with no news source as yet so I'lljust carry over the postings toward this verbatim as the judgemetn sources and commentary are very much relevant to us all not just those folks who live in DC...

DC Circuit Strikes Down DC Gun Law Under the 2nd Amendment: This morning the D.C. Circuit handed down a decision endorsing the individual rights view of the Second Amendment and striking down the District of Columbia's broad gun ban. The opinion in Parker v. District of Columbia is here. The majority opinion was by Judge Silberman; Judge Henderson dissented.
The opinion is here http://pacer.cadc.uscourts.gov/docs/...3/04-7041a.pdf for the legal begals on the forum .

Fantastic!

Now, this doesn't quite mean that the gun ban is dead. I'm guessing that the city will appeal, and the decision will almost certainly be stayed until that happens. They can either ask for the D.C. Circuit to rehear the case en banc (argue the case before all of the judges on the circuit, rather than just the three judge panel) or appeal directly to the Supreme Court. If it goes to the Supreme Court (either directly or after an en banc hearing) there's a pretty good chance they'll take the case. The Fifth Circuit court of appeals has already ruled that the 2A is a individual right, while the other circuits have found it a 'collective right; so there is a split in interpretation between the different circuits (one of the big reasons the Supreme Court will take a case is to resolve circuit splits). It's been a long time since there was a real, direct 2A case decided by the Supreme Court, but this ruling means there's a pretty good chance that the issue will be before the court in the next year or two. Exciting, but scary. A ruling for the 2A as an individual right could do a lot of good, and a ruling for it as a collective right could do a lot of harm.

Exciting but scary indeed.

The results of this if it ultimately is taken to the Supreme Court could be wonderful for us all and DC residents, or horrible for us all and things remain same for DC residents.
All the marbles...

Page 46--"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."

Page 47--In any event, the Supreme Court has unambiguously held that the Constitution and Bill of Rights are in effect in the District.

Page 50-51--The District contends that modern handguns are not the sort of weapons covered by the Second Amendment. But the District’s claim runs afoul of Miller’s discussion of “Arms.” The Miller Court concluded that the defendants, who did not appear in the Supreme Court, provided no showing that shortbarreled (or sawed-off) shotguns—banned by federal statute—bore “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Miller, 307 U.S. at 178. However, the Court also observed that militiamen were expected to bring their private arms with them when called up for service. Those weapons would be “of the kind in common use at the time.” Id. at 179. There can be no question that most handguns (those in common use) fit that description then and now. See Emerson, 270 F.3d at 227 n.22 (assuming that a Beretta pistol passed the Miller test).

pages 52-53: 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. See, e.g., Kyllo v. United States, 533 U.S. 27, 31-41 (2001) (applying Fourth Amendment standards to thermal imaging search).

Page 58--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. (note: discusses keeping a firearm locked and disassembled in the home)

The thread at CombatCarry can be found here; http://www.combatcarry.com/vbulletin/showthread.php?t=21976

Again this is very very crazy significant and unprecedented news!
Keep an eye on this folks especially considering the current political climate.

- Janq

 

[Janq]

I found another reference to this at SigForum where the OP provided a secondary source via an appelate law news blog...

BREAKING NEWS -- Divided three-judge D.C. Circuit panel holds that the District of Columbia's gun control laws violate individuals' Second Amendment rights: You can access today's lengthy D.C. Circuit ruling at this link (http://pacer.cadc.uscourts.gov/docs/common/opinions/200703/04-7041a.pdf).

According to the majority opinion, "[T]he phrase 'the right of the people,' when read intratextually and in light of Supreme Court precedent, leads us to conclude that the right in question is individual." The majority opinion sums up its holding on this point as follows:

To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment's civic purpose, however, the activities it protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.

The majority opinion also rejects the argument that the Second Amendment does not apply to the District of Columbia because it is not a State. And the majority opinion concludes, "Section 7-2507.02, like the bar on carrying a pistol within the home, amounts to a complete prohibition on the lawful use of handguns for self-defense. As such, we hold it unconstitutional."

Senior Circuit Judge Laurence H. Silberman wrote the majority opinion, in which Circuit Judge Thomas B. Griffith joined. Circuit Judge Karen LeCraft Henderson dissented.

Judge Henderson's dissenting opinion makes clear that she would conclude that the Second Amendment does not bestow an individual right based on what she considers to be binding U.S. Supreme Court precedent requiring that result. But her other main point is that the majority's assertion to the contrary constitutes nothing more than dicta because the Second Amendment's protections, whatever they entail, do not extend to the District of Columbia, because it is not a State.

This is a fascinating and groundbreaking ruling that would appear to be a likely candidate for U.S. Supreme Court review if not overturned first by the en banc D.C. Circuit.

Update: "InstaPundit" notes the ruling in this post linking to additional background on the Second Amendment. 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."

My coverage of the D.C. Circuit's oral argument appeared here on the afternoon of December 7, 2006.

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

Folks this is big news.

- Janq

 

[MrMcCrackin]

how long has the gun ban been in place - seems like forever


i cant imagine what a relief it might be to DC to actually be able to carry in the near future!

 

[Janq]

Since IIRC the summer of '76.
It's been a long ass time.

- Janq

 

[Unsafe]

Long overdue...

 

[DJ 9iron]

Do this in NYC and San Fran! And push for a nationwide reciprocity permit.

 

[Mach5]

This is great...

 

[MrMcCrackin]

over 30 years?


how the hell did it stay on the books so long?????

 

[techwrtr2]

Appeals Court Overturns D.C. Gun Ban

By BRETT ZONGKER
The Associated Press
Friday, March 9, 2007; 6:04 PM

WASHINGTON -- 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, 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" on enrollment in a militia.

The U.S. Court of Appeals for the District of Columbia Circuit ruled that the city cannot prevent people from keeping handguns in their homes. The ruling also struck down a requirement that owners of registered firearms must keep them unloaded and disassembled. The court did not address provisions that prohibit people from carrying unregistered guns outside the home.

D.C. Mayor Adrian Fenty said the city plans to appeal.

"I am personally, deeply disappointed and quite frankly outraged," Fenty said.

Washington and Chicago are the only two major U.S. cities with sweeping handgun bans. Washington's ban on owning handguns went into effect in 1976, and is considered to be the toughest in the nation, according to the National Rifle Association. While courts in other parts of the country have upheld bans on automatic weapons and sawed-off shotguns, the D.C. law is unusual because it involves a prohibition on all pistols.

In 2004, a lower-court judge told six city residents that they did not have a constitutional right to own handguns. The plaintiffs include residents of high-crime neighborhoods who wanted the guns for protection.

But on Friday, Judge Laurence Silberman, writing for the majority, said "The district's definition of the militia is just too narrow. 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.

The Bush administration has endorsed individual gun-ownership rights, but the Supreme Court has never settled the issue. If the dispute makes it to the high court, it would be the first case in nearly 70 years to address the Second Amendment's scope.

"I think this is well positioned for review of the Supreme Court," said Jonathan Turley, a constitutional law professor at George Washington University.

Even as the appeals court overturned the city's 1976 ban on most handgun ownership, Silberman wrote that the Second Amendment is still "subject to the same sort of reasonable restrictions that have been recognized as limiting, for instance, the First Amendment."

Such restrictions might include gun registration, firearms testing to promote public safety or restrictions on gun ownership for criminals or those deemed mentally ill.

Linky

I like this

Judge Karen Henderson dissented, writing that the Second Amendment does not apply to the District of Columbia because it is not a state

. I wonder if she thinks the Bill of Rights doesn't apply in DC...

 

[fatcat]

It's about damn time people there where able to protect themself. I just saw this on Fox news and the mayor sounded quite pissed This is the same mayor that tryed to sue some gun stores here in Georgia for a few stupid things.

 

[speaker]

For folks not from DC or the metro area and/or who are not up on east coast gun politics this news is FREAKING HUGE!!!!!!!!!!!1!

It is huge for pro-Constitution forces in every anti-gun / anti-Constitution state such as ours.

It's a precedent.

We'll see what the Supremes do with it if it makes it that far.

 

[techwrtr2]

I wouldn't be surprised if it makes it to the Supreme Court. In fact, I expect it to.

What I wonder is how much of an effect their ruling on this matter will have. Assuming the supremes uphold this ruling, will it effect other gun laws such as the proposed AWD or the NFA?

 

[fatcat]

I dont think anything will ever effect the NFA law's As for the AWB's yes, they will see it is a loseing issue and drop it for the time being... or till they get in office.

 

[hugh g. rection]

i hope it makes it to the supreme court too.this could settle the second amendment issue once and for all.

 

[techwrtr2]

or it could really fuck things up.

What's our confidence in SCOTUS?

 

[fatcat]

hah! i like this part..

"Judge Karen Henderson dissented, writing that the Second Amendment does not apply to the District of Columbia because it is not a state."

so I guess the rest of the amendments dont?

 

[techwrtr2]

hah! i like this part..

"Judge Karen Henderson dissented, writing that the Second Amendment does not apply to the District of Columbia because it is not a state."

so I guess the rest of the amendments dont?

That's what I was thinking... I guess we can shut down the press in DC since the 1st amendment doesn't apply.

 

[Petrus]

That's what I was thinking... I guess we can shut down the press in DC since the 1st amendment doesn't apply.

If that's the best an anti-can do when looking at it through a Constitutional POV then we have a chance... but boy do I fear what might happen in the Supreme Court...

 

[fatcat]

Yea, I do dread that to.. God only knows what they could come up with, Could be what we have been waiting for or very bad news for all of us.

 

[techwrtr2]

Yea, I do dread that to.. God only knows what they could come up with, Could be what we have been waiting for or very bad news for all of us.

That's my fear too. I just don't know enough about the current makeup of the SCOTUS to have a good guess which way it'll run. I know it's stacked in the conservative direction, but that doesn't mean they'll be pro gun.

Given the general lack of knowledge people have about guns, they might as well be magic.