Court says DC gun ban violates individuals' Second Amendment rights

[Mr Weebles]

Here's the PDF.

Important part:

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.

 

[Admin]

 

[hminsky]

This is great reading.


I suggest everyone really read it, it is the most succinct defense of 2nd ammendment I have seen
from the courts yet. I wonder if it will make it up to a federal level?

 

[Mr Weebles]

I wonder if it will make it up to a federal level?

If it makes it through an en banc review by the DC circuit, yes, it probably will go to the Feds.

 

[Adam_MA]

WOW! Just WOW!

 

[BONZCNC]

WOW! Just WOW!

Well put!!

 

[Pilgrim]

Excellent.

Did you read the part about how locking a gun in your house makes it unfunctional and therefore illegal?

Figures that a woman judge would dissent.


Note at the beginning it refers to our prev AG.

 

[snowjoker]

Great reading! Obviously coming from people that "Get it" and bashed by those that don't.

 

[crak]

And the NRA tried to stop this case from going forward!

Drinks are on Derek.

 

[TomH]

Wow, someone finally recognized the obvious! I wonder if some of these points could be put through the MA court system? It seems to me most if not all of the MA gun laws are in violation of the 2nd Ammendment. A case like this in another state could set a precedent!!

-Tom

 

[Mr Weebles]

I didn't like this part though:

That is not to suggest that the government is absolutely barred from regulating the use and ownership of pistols. The protections of the Second Amendment are subject to the same sort of reasonable restrictions that have been recognized as limiting, for instance, the First Amendment. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (“[G]overnment may impose reasonable restrictions on the time, place, or manner of protected speech . . . .”). Indeed, the right to keep and bear arms—which we have explained pre-existed, and therefore was preserved by, the Second Amendment—was subject to restrictions at common law. We take these to be the sort of reasonable regulations contemplated by the drafters of the Second Amendment. For instance, it is presumably reasonable “to prohibit the carrying of weapons when under the influence of intoxicating drink, or to a church, polling place, or public assembly, or in a manner calculated to inspire terror . . . .” State v. Kerner, 107 S.E. 222, 225 (N.C. 1921). And as we have noted, the United States Supreme Court has observed that prohibiting the carrying of concealed weapons does not offend the Second Amendment. Robertson, 165 U.S. at 281-82.
Similarly, the Court also appears to have held that convicted felons may be deprived of their right to keep and bear arms. See Lewis v. United States, 445 U.S. 55, 65 n.8 (1980) (citing Miller, 307 U.S. at 178). These regulations promote the government’s interest in public safety consistent with our common law tradition. Just as importantly, however, they do not impair the
core conduct upon which the right was premised.

 

[drgrant]

What's the progress of this case? I guess it's still in appeal? I don't see
a judgement here, per se. Although this is certainly very good
news in general. Maybe the NRA will learn that being more agressive
about issues is not a bad thing.

-Mike

 

[Scrivener]

And the NRA tried to stop this case from going forward!

Really? Got a link?

Note that the minority judge's opinion is based upon a wholly specious theory; that because the Capitol District is not a state, the Second Amendment is irrelevant.

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

Last time I looked, DC was still part of the US. That makes it subject to the Constitution, THE Law of the Land. Forget law school; that's high school civics.

Such stellar reasoning. What quota does THIS judge fill?

Besides the one for cretins.........

 

[Mr Weebles]

Really? Got a link?

Try here.

 

[drgrant]

Really? Got a link?

See:

http://www.gurapossessky.com/parker_pleadings.htm

More specifically:

http://www.gurapossessky.com/documents/Brief_Opposing_Consolidation.pdf


Alan Gura essentially had to get the court to tell the NRA to FOAD- because
the NRA was trying to confuse the issue and interfere so that the courts
would not treat it as a 2nd amendment case. They were trying to
run interference to prevent the question from ever making it to court.

-Mike

 

[szaino]

Hope the attornies here can help answer what this all means.

This "is" the US Appeals Court ruling which reversed the District Court who originally ruled that the appellants did not have individual rights to bear arms under the 2nd amendment. These appellenats were challenging DC's, (I guess) ban or restrictions.

Does this mean that they Do have the right? or does this just mean the case goes back to the district court again?

If the US appeals court rules doesn't this cover other states and jurisdictions as well?

 

[TomH]

I see what you mean weebles, but I can see supporting some regulation if it doesn't restrict rights and actually serves a purpose to prevent crime. I think the key part in there is where it says "Just as importantly, however, they do not impair the core conduct upon which the right was premised." Of course where that impairment starts is a matter of debate!

-Tom

 

[Mr Weebles]

I see what you mean weebles, but I can see supporting some regulation if it doesn't restrict rights and actually serves a purpose to prevent crime. I think the key part in there is where it says "Just as importantly, however, they do not impair the core conduct upon which the right was premised." Of course where that impairment starts is a matter of debate!

-Tom

You can support some regulation? I can't.

AFAIC, unless I commit a crime my Second Amendment rights are infringed every time the government regulates my ownership of firearms.

Do you support Massachusetts using the AG to regulate firearms ownership under the guise of "public safety?" Do you support a list of approved firearms that they deign reasonable for private ownership in the Commonwealth? Do you support the arbitrary issuance of LTCs by Chiefs of Police?

If so, you don't support the Second Amendment.

 

[guywithglasses]

Two addt'l excerpts

.....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)......

.....Of course, the District’s virtual ban on handgun ownership is
not based on any militia purpose. It is justified solely as a measure to
protect public safety. As amici point out, and as D.C. judges are well
aware, the black market for handguns in the District is so strong that
handguns are readily available (probably at little premium) to
criminals. It is asserted, therefore, that the D.C. gun control laws
irrationally prevent only law abiding citizens from owning handguns.
It is unnecessary to consider that point, for we think the D.C. laws
impermissibly deny Second Amendment rights.......

 

[Jaxon]

Hope the attornies here can help answer what this all means.

This "is" the US Appeals Court ruling which reversed the District Court who originally ruled that the appellants did not have individual rights to bear arms under the 2nd amendment. These appellenats were challenging DC's, (I guess) ban or restrictions.

Does this mean that they Do have the right? or does this just mean the case goes back to the district court again?

If the US appeals court rules doesn't this cover other states and jurisdictions as well?

I think you have to read the end.

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

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

.

I'm open to interpretation

 

[Mr Weebles]

I think you have to read the end.
.

I'm open to interpretation

You read too far. The part you quote was from the dissent.

 

[hminsky]

I think you have to read the end.
.

I'm open to interpretation

That is the dissenting opinion you are reading, i.e., the opinion of the judge who lost the vote on the case.

 

[Jaxon]

That's what I thought.. but I couldnt' find the other... Thanks, just way too much legalize, and I"m not having a great day anyway...

 

[drgrant]

I see what you mean weebles, but I can see supporting some regulation if it doesn't restrict rights and actually serves a purpose to prevent crime.

You can't have it both ways- you will always restrict rights if you have
unreasonable gun laws like most of those that we have today.

I have not forgotten that the constitution allows for "reasonable regulation" of
rights. 98% of the gun laws in existence, would not be considered anything
approaching a notional of "reasonable regulation". Having a law that says
you can't fire guns up into the air in the middle of town is a reasonable regulation;
having to beg the government for permission to buy a gun (eg via 4473 form) is
most certainly NOT an example of reasonable regulation.

-Mike

 

[Ripach]

while this certainly appears to be great news the pessimist in me say's lets wait and see how things progress from here. though a little extra smiling cant hurt.

 

[Scrivener]

It seems the two cases seek to achieve the same ends, but by a different route. The first went directly on the Second Amendment - and WON at the appellate level!

The second went under a civil rights approach, more circuitous and more cautious.

I can see why the Cato group is pissed, however.

 

[TomH]

No I don't support the list weebles, I think licensing is ok but I don't think the MA system of licensing is good at all. Screening for past crimes with guns etc is a reasonable thing imo. Chief discretion of issuing isn't. I'm talking about letting law abiding citizens get licenses and buy guns all they want. Sadly there will always be criminals out there that might re-offend with guns because they are let out of jail, our criminal system is sometimes a joke. That is really the only reason for regulation. Keeping them in jail would be a better option perhaps?

I guess in summary, if you are responsible with firearms you should be able to have them. And you should be assumed responsible until you demonstrate you are not, then regulation should prohibit you.

-Tom

 

[csharpdev]

I would say in the case of criminals when say Joe Badguy enter a bank with gun drawn and robs the place he is voluntarily giving up his right to keep and bear arms. And when Joe gets out of prison he should be bared from every owning/possing them (will it stop him, probably not).

Although in a perfect world there would be enough CCW's that Joe wouldn't make it out of the bank alive and this becomes a moot point.

 

[drgrant]

I would say in the case of criminals when say Joe Badguy enter a bank with gun drawn and robs the place he is voluntarily giving up his right to keep and bear arms. And when Joe gets out of prison he should be bared from every owning/possing them (will it stop him, probably not).

IMO if society believes that Joe shouldn't be allowed to own firearms- then
it is doing so because it believes that Joe is a threat to public safety... and
therefore the "system" needs to incarcerate him for a longer period of
time. (Or it needs to reexamine wether or not joe felon is truely
dangerous... EG, if a guy gets bagged on a felony for a nonviolent crime, and then
is released, I fail to see what the point of disarming him is.) The way the justice
system is supposed to work is criminals are supposed to serve jail time in order
to fulfill a perceived debt to society... if this is the case, then violent crimes should
be given a larger "debt".

Seriously, though... if someone is considered dangerous enough that they
can't legally own a firearm, do we really want them walking around
freely? And after that... no dumb law is going to keep them from getting
a gun if they really want it. (If they're incarcerated, that might be pretty
difficult for them to hurt someone, though. ) If these lawmakers were really
interested in public safety they would keep violent offenders in jail longer- and
not make up half assed excuses for laws that have unintended consequences
on the public. Things like FIP and Lautenberg amendment
do more to infringe rights than they do in terms of actually protecting
people.

IMO changing sentencing guidelines and relaxing deadly force
laws (eg, allowing a deadly force response to ANY deadly force
threat, even under the context of theft) Is a lot better idea than having
dumbass things like FIP/Lautenberg.

I digress.. now that we've caused drift.


-Mike

 

[Mr Weebles]

Sadly there will always be criminals out there that might re-offend with guns because they are let out of jail, our criminal system is sometimes a joke. That is really the only reason for regulation.

Well, since criminals don't go through the licensing process or follow gun laws, I guess your point is moot.