Court says DC gun ban violates individuals' Second Amendment rights

[dperg]

Well just because that is how it is now, doesn't mean it will always be that way. If more people stood up and said this isn't right things would change. People who think like us should organize, and I mean REALLY organize for change. I know GOAL is out there working for change, but something like re-affirming the 2nd ammendment or changing the interpretation of the MA constitution would have a huge effect.

-Tom

How about a petition drive to amend the MA constitution to read something like "In order to assure the natural rights of life, liberty and self defense, the right of the citizens of the Commonwealth to keep and carry firearms shall not be abridged."

 

[Jose]

Not really.... state problems are still state problems. For instance- Mass SJC
has already ruled that the RKBA provision in the state constitution does not
apply to individual ownership rights. (or something similarly disgusting).

-Mike

I said some states, not all states.

I don't know about yours, but my Supreme Justices are elected. Make the wrong ruling, and you're outta there.

 

[Rob Boudrie]

Finally. D.C. leads the way. Now we just need to get NY, Chicago, and Detroit on the same page (those are the other three, right?).

NYC has licensing, and ordinary people can get permission to possess low capacity handguns in their homes if they fill out a lot of paperwork. The DC ruling doesn't even come close to ordering a carry permit system.

Chicago has the same "total ban of handguns if not registered before a specific date", and some surrounding communities like Morton Grove and Oak Park have total handgun bans without grandfathering. Previous cases (federal, i think) have failed so this one is a toss-up. Illinois also has a state level anti-preemption law that gives localities the authority to implement local bans.

I think Detroit is subject t the same shall-issue carry law as the rest of Michigan.

 

[LoginName]

What do mean by unincorporated? I've never heard that term before. At least not in this context.

Gary

Prior to the 14th amendment, the Bill of Rights was only binding upon the Federal government... the States were free to either recognize it or ignore it
(fortunately, for the most part, many states adopted part or in whole the US BOR as part of their own constitution).

Under the principle of incorporation, the SCOTUS has ruled that there are certain amendments to the BOR that the states must recognize and comply with (the 2nd not being one of them), and cannot not pass laws that deny a citizen those rights...

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law;

The SCOTUS could rule that the 2nd is an individual right, but unless it's also incorporated under the 14th amendment, it would simply mean that the Federal government could not infringe upon a persons RKBA... the individual states would still be allowed to keep and pass any gun-control law they choose to.

 

[Scrivener]

I don't know about yours, but my Supreme Justices are elected.

Ours aren't.

 

[TomH]

dperg and Jim: that is what I'm saying, why not TRY it?? It would require the support of every gun owner and enthusiast in the state, so it would need to be well organized and campaigned. With the wording of citizen it would guarantee gun rights in the state.

-Tom

 

[csharpdev]

Wouldn't hurt to run an educational campaign before hand to educate the non gun community as to importance of RKBA and why it is essential to liberty. Before the Anti crowd starts running their scare campaign to fight it.

 

[TomH]

I honestly think that if a lot of the non gun community saw the facts plain and simple, they would be more inclined to see the light. The problem is people are brainwashed from the elite idiots trying to push their agenda and won't even consider the other side. I think good information and education would go a long way!

-Tom

 

[drgrant]

Sarah's Brady Bunch doesn't get it at all, for if they did they'd take up arms next to us. They don't get the big picture.

It's abundantly clear to me that they WANT to be coddled by big
government and live in socialist mediocrity. There is no such "getting it" for
them in the cards, ever. Anyone who as at that high of a level in the
debate, advocating what they are, is in pretty much complete agreement
with that agenda. The higher levels of gun control are all socialist/globalist
dickheads like George Soros et al. They -WANT- nanny state governments.
There's no if ands or buts about it. It's an elaborate scheme to disable the
power of individuals in government.


-Mike

 

[Garys]

It's abundantly clear to me that they WANT to be coddled by big government and live in socialist mediocrity. There is no such "getting it" for
them in the cards, ever. Anyone who as at that high of a level in the
debate, advocating what they are, is in pretty much complete agreement
with that agenda. The higher levels of gun control are all socialist/globalist
dickheads like George Soros et al. They -WANT- nanny state governments.
There's no if ands or buts about it. It's an elaborate scheme to disable the
power of individuals in government.

-Mike

I'd say there is a tremendous amount of conceit and intellectual elitism in the liberal ranks. They know better than we do what is good for us. It's the risk of a representative form of government. Well, actually I think the real risk is when a representative government creates huge bureaucracies that can effectively make law with little or no oversight. The CMR and CFR are prime examples.

OTOH, direct democracy is probably worse. In that case a majority driven by a left leaning media would have probably voted to disarm us all.

Damned if you do, damned if you don't.

It's going to see how this plays out at the Supreme Court.

Gary

 

[matt1956]

I wonder why GOAL never considered changing the wording via a constitutional amendment? If enough signatures can be gotten for gay marriage, why not for amending the MA state constitution to put it on the ballot? And then let the voters decide.

I know some will say "but it won't pass!!!" Well so what? At least it will have been tried. And if it doesn't pass, MA gun owners are just going to stay right where they are right now anyway.

I'll repeat: if enough gay marriage signatures can be gathered then enough should be able to be gathered to send a constitutional amendment to the legislature.

Your argument would work only if the state actually cared what the people think. You forget, the last election "the people" had the signatures to vote on the gay marriage issue and yet, they never allowed it... and never will.

 

[Lynne]

Your argument would work only if the state actually cared what the people think. You forget, the last election "the people" had the signatures to vote on the gay marriage issue and yet, they never allowed it... and never will.

While I agree with you for the most part matt, it did finally make it through the first round, and only because people screamed to their Rep's. Sadly, I don't think the scream will be as loud for gun owners.

 

[RKG]

I think anyone's prediction of "what this means" is necessarily speculative. This is so not necessarily for any want of scholarship or rational capacity, but simply because the issues are in flux.

At a minimum, the "bottom line" for the District of Columbia residents is not to be found in the opinion of the Court of Appeals' decision, but rather in the plaintiffs' complaint. Note that the mandate of the decision orders the District Court to grant the relief sought in the plaintiffs' complaint. One infers that this relief will lead to the immediate and self-implementing right to purchase and own firearms and keep them in the home. As others have noted, this decision implicates nothing with respect to the right to carry abroad, whether openly or concealed.

At the moment, the decision of the Court of Appeals for the D.C. Circuit is binding only in the District of Columbia. The jurisdiction of this Court of Appeals, unlike that of the Courts of Appeals for other circuits, does not extend to any of the states.

Should this case be reviewed and affirmed by the Supreme Court essentially as written by the Court of Appeals, it will become binding on the Courts of Appeals for all of the circuits and the District Courts for all of the federal districts; this includes the First Circuit (which includes Massachusetts) and the District of Massachusetts.

Which leads directly to the question of whether the decision (hypothetically affirmed) applies to the power of the states to deny their citizens the right to keep and bear arms or only to the power of the federal government to do so. As others have noted, what little federal jurisprudence exists on the point points to non-incorporation of the Second Amendment into the Fourteenth.

However, I believe that the question of individual vs. collective right and the question of incorporation vs. non-incorporation are not entirely unrelated. Almost by definition, if the Second Amendment afforded only a collective right (as was the prevailing wisdom when these earlier decisions were rendered), then it would not be incorporated, because the Fourteenth Amendment by its terms applies only to rights of individuals. Pari passu, if now the Second Amendment is declared to state an individual federal right, then the issue of whether or not it is applicable as a federal limitation on states' powers has to be considered afresh.

So let us ask: assuming Parker is affirmed (essentially as written) by the Supreme Court, and assuming further that some later decision holds it to be applicable to the states, what does this mean for Massachusetts?

Precious little, since Massachusettes imposes very little limitation on the ability of its citizens to keep firearms, including handguns, in the home. Prior to the 1998 amendments, the SJC had held by decision that ch. 296, sec. 10(a) (which criminalizes unlicensed "carrying") only applied to one carrying outside one's home. Likewise, the present version of section 10(a) exempts from its scope one who is "present in or on his residence or place of business."

Viewed from the perspective of those who wish that federal law mandated the issuance of CCW authority as of right to anyone not on a short list of disqualifications, Parker is at best the first step in a long sequence of further decisions that would be required in order to reach this result. To be sure, Parker is nice because, had it come out the other way, the aspiration stated in this paragraph would be impossible, but by itself, Parker falls far short of achieving that aspiration.

 

[JonJ]

Thank you for your outlook and explanation, RGK.

 

[SemiAutoSam]

I dont have a link But this was a very interesting read about the reason (as if anyone should need a reason) to protect themselves.

Originally Posted by national review
Just Stand There While I Die
The D.C. government has that right, and exercises it frequently.

By David Freddoso

The first time someone tried to mug me in Washington D.C., I ran away as he threatened to shoot me from behind.

The second time, when the exact same situation arose, I knew better. I stopped and turned around to confront the robber as soon as he threatened to shoot: “Hey, buddy!” I said confidently. “Who do you think you’re fooling? Guns are outlawed in the District of Columbia — I know you don’t really have one.”

He shot me in the face with a crossbow.

Okay, sorry, I’m just making that part up. What really happened is I ran like hell and got away, both times. Both times, the cops showed up about an hour after I dialed 911.

I have no idea whether either of my muggers actually had a gun — they each chased me from behind, and I was too busy running to ask. But a few years back, my best friend and his brother knew for sure that real guns were being trained on their heads as they were forced for several minutes to lie face-down, just blocks from the Capitol, on the red-brick sidewalk in front of their D.C. rowhouse. They both survived the robbery (two blocks from the local police precinct), but neither of them thought to ask the important questions: “Excuse me, were those guns legally registered before 1977? Are they grandfathered under the District of Columbia Firearms Control Regulations Act of 1975?”

I hope that now you can understand where I am coming from when I read District of Columbia Attorney General Linda Singer’s hysterical court filing in the Heller case, which may strike down the District’s 31-year-old comprehensive ban on gun ownership.

“Whatever right the Second Amendment guarantees,” wrote the District’s chief law enforcer, “it does not require the District to stand by while its citizens die.”

What an excellent example of unintended humor — the District’s government is a national leader in standing by while its citizens die. Our homicide rate hit a 20-year low in 2005 — just 29 victims per 100,000 residents. That is slightly better than New York City’s rate (30.7) under Mayor David Dinkins in 1990, when the Big Apple suffered 2,250 homicides.

In 1991, the D.C. murder rate reached an astounding 81 per 100,000 — that was two years after Mayor Marion Barry famously told the Washington Press Club, “Except for the killings, Washington has one of the lowest crime rates in the country.”

D.C. residents are strictly forbidden from owning handguns, even in the privacy of their homes. Any long guns must be registered and kept “unloaded and disassembled.” It is not even legal, strictly speaking, to assemble and load your gun when you hear an intruder downstairs. A lower court ruled the ban unconstitutional, and the Supreme Court will decide later this year whether to take up the case.

In the debate over the gun ban, there is a strong statistical case that an armed citizenry is safer than one disarmed by unconstitutional laws, but this argument is not even necessary. There is absolutely no valid case that the District’s gun ban makes me safer as a District resident. When Singer and Mayor Adrian Fenty (D., of course) penned a September 4 Washington Post op-ed stating that “The handgun ban has saved countless lives,” were they really suggesting that without the ban there might have been 1,000 murder victims in 1991, instead of just 482? The implication is that D.C. is so totally ungovernable that only a total deprivation of constitutional rights can make it barely livable.

It is bad enough that the District government takes away constitutional rights in the name of safety, and then fails even to provide safety. But the story is actually better than that. In their response to the attorney generals brief, Heller and the other plaintiffs in the case responded to Singer by noting the following irony:

Petitioners correctly note that the Second Amendment “does not require the District to stand by while its citizens die.” … Yet the city consistently fights to secure its right to stand by while its citizens are victimized by crime.

Yes, you read that correctly. The plaintiffs’ attorneys refer to a series of cases in which the District literally asserted its right to “stand by” while its citizens are victimized. The most dramatic is Warren v. District of Columbia, in which three women were sexually violated because of gross negligence on the part of Metropolitan police officers responding to their call. In the early morning hours of March 16, 1975, two men broke down the back door of a D.C. townhouse in Northeast and began raping a woman on the second floor. Her two roommates, hiding one floor above, called the police. According to the court’s opinion, a squad car responded, and the officer failed even to exit his car before leaving. The two women, listening to their roommate scream, called the police again. This time, an officer went so far as to knock at the door, but then left without further inspection.

Once the attackers discovered the other two women, they had their sick, twisted way with all three of them for the next 14 hours (I will not describe any of the details). The women sued the District of Columbia, which argued that “a government and its agents are under no general duty to provide public services, such as police protection, to any particular individual citizen.” The District won the case based on what is actually a long-standing legal principle.

Singer, with her silly, dramatic argumentation, has reminded us of this fact — something for which we should all be grateful.

It is our misfortune in Washington to be governed by such simpletons, but it is also a hidden blessing that their legal team shows this level of incompetence. It may be our best chance as District residents to take our safety out of their hands and put it back into our own.

— David Freddoso is an NRO staff reporter.

 

[pipmaster1971]

Her two roommates, hiding one floor above, called the police. According to the court’s opinion, a squad car responded, and the officer failed even to exit his car before leaving. The two women, listening to their roommate scream, called the police again. This time, an officer went so far as to knock at the door, but then left without further inspection.

Wow!!! [sad2]

 

[Coyote33]

Mass. Const. art. XVII provides:

The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.

The Massachusetts Supreme Judicial Court has held that art. XVII does not guarantee individual ownership or possession of weapons. Commonwealth v. Davis, 343 N.E.2d 847, 849 (Mass. 1976). In Davis, the court rejected defendant’s challenge to a state law prohibiting the possession of a short-barreled shotgun. Davis, 343 N.E.2d at 850-51. The court reasoned that “[p]rovisions like art. 17 were not directed to guaranteeing individual ownership or possession of weapons.” Rather, the right granted in art. XVII relates to service in an organized militia. Davis, 343 N.E.2d at 848-849. Further, the court noted that the statute was “part of a large regulatory scheme to promote the public safety, and there is nothing to suggest that, even in early times, due regulation of possession or carrying of firearms, short of some sweeping prohibition, would have been thought to be an improper curtailment of individual liberty or to undercut the militia system.” Id. at 849. See also, Commonwealth v. Murphy, 44 N.E. 138, 138 (Mass. 1896) (rejecting art. XVII challenge to statute forbidding private militias, noting that "it has been almost universally held that the legislature may regulate and limit the mode of carrying arms").

In Chief of Police of Shelburne v. Moyer, 453 N.E.2d 461, 464 (Mass. App. Ct. 1983), the Massachusetts Court of Appeals concluded, consistent with Davis, that a statute requiring a person to have a license in order to carry a firearm did not violate art. XVII because “[t]here is no right under art. 17…for a private citizen to keep and bear arms and thus to require that a citizen have a license to do so is not unconstitutional.” Accord, Dupont v. Chief of Police of Pepperell, 786 N.E.2d 396, 400 (Mass. App. Ct. 2003).

I guess if this incorporation stuff happens, these will all be thrown out, along with everything else these were then holding back, right?

 

[drumenigma]

We'd like to hope so.

 

[Fixxah]

Make mine a double please Derek...LOL

 

[Coyote33]

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