down with D.C. handgun ban
c/p from cnn
WASHINGTON (CNN) -- 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.
In its 2-to-1 decision, the U.S. Circuit Court of Appeals for the District of Columbia held that the amendment's guarantee belongs to individuals and was not a collective right limited to members of militias -- something gun-control proponents long have contended.
"The amendment does not protect the right of militiamen to keep and bear arms, but rather the right of the people," the majority opinion said. "If the competent drafters of the Second Amendment had meant the right to be limited to the protection of state militias, it is hard to imagine that they would have chosen the language they did."
http://www.cnn.com/2007/LAW/03/09/gun.ban.ruling/index.html
Appeals court cites Second Amendment right to keep and bear arms
?_? Ruling says framers didn't intend to limit gun possession to militias
?_? Washington mayor outraged[}:)], vows to take argument higher[V][:(]
?_? Supreme Court has not addressed issue in nearly 70 years[:0]
WASHINGTON (CNN) -- 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.
In its 2-to-1 decision, the U.S. Circuit Court of Appeals for the District of Columbia held that the amendment's guarantee belongs to individuals and was not a collective right limited to members of militias -- something gun-control proponents long have contended.
"The amendment does not protect the right of militiamen to keep and bear arms, but rather the right of the people," the majority opinion said. "If the competent drafters of the Second Amendment had meant the right to be limited to the protection of state militias, it is hard to imagine that they would have chosen the language they did."
http://www.cnn.com/2007/LAW/03/09/gun.ban.ruling/index.html
Appeals court cites Second Amendment right to keep and bear arms
?_? Ruling says framers didn't intend to limit gun possession to militias
?_? Washington mayor outraged[}:)], vows to take argument higher[V][:(]
?_? Supreme Court has not addressed issue in nearly 70 years[:0]
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This is big. 0 -
WASHINGTON, March 9 /PRNewswire-USNewswire/ -- In a ground-breaking
opinion, the U.S. Court of Appeals for the District of Columbia Circuit
today overturned the D.C. gun ban, a three-decade old prohibition on
possession of firearms within the Nation's Capital. Senior Judge Lawrence
H. Silberman, joined by Judge Thomas B. Griffith, a recent Bush appointee,
concluded that "the Second Amendment protects an individual right to keep
and bear arms." Judge Karen Lecraft Henderson filed a dissenting opinion.
The case, Parker v. District of Columbia, was brought by six D.C.
residents -- including Cato senior fellow Tom Palmer -- who sought to keep
functional firearms in their homes for self-defense. The appellate court
reversed a lower D.C. court on all counts, and 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."
Cato senior fellow Robert A. Levy acted as co-counsel to the
plaintiffs.
Under existing law, no handgun could be registered in the District, and
even pistols registered prior to D.C.'s 1976 ban could not be carried from
room to room within a home without a license. The sum result of D.C.'s
myriad firearm codes: no one within the city limits may possess a
functional firearm within his or her own home.0 -
The document.
http://pacer.cadc.uscourts.gov/docs/common/opinions/200703/04-7041a.pdf
Don't make me c&p the entire thing...I will. It's long. Really long. Haven't read it yet, but it will be a fascinating read.0 -
Dang ADOBE. Can't c&p. Looks like I'll have to do some longhand typing. Page 10 reads:
"We note that the Ninth circuit has recently dealt with a Second Amendment claim by first extensively analyzing that provision, determining that it doe not provide an individual right, and then, and only then, concluding that the plaintiff lacked the 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 thin such an approach is doctrinally quite unsound."
CAN IT BE SAID ANY SIMPLER!!!!!!!!!!
Bottom of page 12 starts the argument and reasoning for the Second Amendment. Excellent read. It summarizes on page 46. Excellent read in between 12 and 46, but if you want to see how it all ends go to 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 ans self-defense, the latter be 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 importance and salutary civic purpose of helping the 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.
I'm stopping here. I've read enough and going to bed soon.0 -
One last thing. This was found at the CATO Institutes's website. They're the ones pushing this case (not the NRA). I've read some of there stuff before. Usually quite entertaining reading material. (I had to cut and paste something.)
http://www.cato.org/testimony/ct-rl062805.html
...For starters, no handgun can be registered in D.C. Even those pistols registered prior to the District's 1976 ban cannot be carried from room to room in the home without a license, which is never granted. Moreover, all firearms in the home, including rifles and shotguns, must be unloaded and either disassembled or bound by a trigger lock. In effect, no one in the District can possess a functional firearm in his or her own residence. The law applies not just to "unfit" persons like felons, minors, or the mentally incompetent, but across-the-board to ordinary, honest, responsible citizens.
More than three dozen challenges to the D.C. law have already been filed but mostly by criminals serving longer sentences for gun possession. The Parker case is different. The lead plaintiff, Shelly Parker, resides in a high-crime neighborhood in the heart of the District. People living on her block are harassed relentlessly by drug dealers and addicts. Ms. Parker decided to do something about it. She called the police time and again then encouraged her neighbors to do the same. She organized block meetings to discuss the problem. For her audacity, Shelly Parker was labeled as a trouble-maker by the dealers, who threatened her at every opportunity.
In 2002, the back window of her car was broken. Then a large rock was thrown through her front window. Her security camera was stolen from the outside of her house. A drug user drove his car into her back fence. A year later, a dealer started banging on her door and tried to pry his way into her house, repeatedly yelling, "gripe, I'll kill you, I live on this block too." Ms. Parker knows that the police are "not going to do very much about the drug problem on my block." She would like to possess a functional handgun within her home for self-defense, but fears arrest, prosecution, incarceration, and fine because of D.C.'s unconstitutional gun ban.
A second plaintiff is a special police officer who carries a handgun to provide security for the Thurgood Marshall Judicial Center. But when he applied for permission to possess a handgun within his home, to defend his own household, the D.C. government turned him down. Other plaintiffs include a gay man who was assaulted in another city on account of his sexual orientation. While walking to dinner with a co-worker, he encountered a group of young men who started yelling, "friend," "homo," "queer," "we're going to kill you and they'll never find your bodies." Our plaintiff pulled his handgun out of his backpack and his assailants retreated. He could not have done that in Washington, D.C.
The six plaintiffs in Parker v. District of Columbia are asking a federal judge to prevent D.C. from barring the registration of handguns, banning the possession of functional firearms within the home, and forbidding firearms from being carried from room to room. The plaintiffs live in the District, pay their taxes in the District, and obey the laws in the District. But the District of Columbia says that if someone breaks into their houses, their only choice is to call 911 and pray that the police arrive in time. That's not good enough. The right to keep and bear arms includes the right to defend your property, your family, and your life. No government should be permitted to take that right away.
IV. What Role Should Congress Play in Securing Second Amendment Rights?
Most of the public statements opposing The District of Columbia Personal Protection Act are without merit. I address two of them below.
First, District of Columbia Del. Eleanor Holmes Norton argues that Congress must not intervene to overturn selected D.C. gun laws because that would represent an impermissible "intrusion into our self-government."24 Nonsense. Congress, as expressly set out in Article I of the U.S. Constitution, has plenary power over the District. Moreover, every member of Congress has an independent, affirmative obligation to uphold the Constitution. If the District's handgun ban violates the Second Amendment - as it does - then Congress should act to defend D.C. residents' Second Amendment rights.
Second, the Washington Post editorializes that Congress should not use its plenary power in a supposedly local matter because "the District is hardly unique."25 Wrong again. The District is indeed unique, in the following respects:
*
The District's rate of gun violence is among the highest in the nation. Still, Washington, D.C. has the most draconian gun laws of any major city. If "reasonable" regulations are those that prohibit bad persons from possessing massively destructive firearms, then the District's blanket prohibition of handguns is patently unreasonable.
*
Until 1868, when the 14th Amendment was ratified, the Bill of Rights applied only to the federal government. But unlike most of the other ten amendments, the applicability of the Second Amendment to the states has not been resolved. Yet because Washington, D.C. is not one of the 50 states (even though it is a "free State" in the context of the Second Amendment), the complex, widely debated question of "incorporation" need not be addressed when D.C. law is challenged on Second Amendment grounds.
*
Felonies under D.C. law are prosecuted by the U.S. Attorney for the District of Columbia, an employee of the Justice Department - the same Justice Department that is now on record favoring an individual rights theory of the Second Amendment. To be sure, former Attorney General Ashcroft declared in an internal memorandum that the Justice Department "will continue to defend the constitutionality of all existing federal firearms laws."26 But D.C. law, although enacted pursuant to congressional delegation, is not federal law.
That said, there is a legitimate and important reason for Congress to step aside until Parker v. District of Columbia is resolved. The Parker lawsuit was filed by upstanding D.C. residents who want to be able to defend themselves and their families in their own homes. Parker is now pending before the U.S. Court of Appeals for the D.C. Circuit. If H.R. 1288 is enacted, the lawsuit will be dismissed as moot. After all, plaintiffs cannot challenge a law that no longer exists.
Otherwise, Parker could well be headed to the Supreme Court; and that is where it belongs. The citizens of this country deserve a foursquare pronouncement from the nation's highest court about the real meaning of the Second Amendment for all Americans - not just the residents of D.C. Presently, because the Supreme Court has not resolved its view of the Second Amendment, the right to keep and bear arms under state law extends only as far as each state's constitution or statutes permit. That's unacceptable. A disputable Second Amendment right without a legally enforceable federal remedy is, in some states, no right at all.
Although the rights of D.C. residents can be secured by either legislation or litigation, a narrow bill aimed at the D.C. Code will do only part of the job. The bill could be repealed by the next anti-gun Congress. And more important, the bill will have no effect outside of the District.27 That means, of course, the bill will have negligible impact on gun owners' rights when contrasted with an unambiguous proclamation, applicable across the nation, from the U.S. Supreme Court.
If the Court should mistakenly hold that the Second Amendment provides a collective rather than an individual right, that would be the time for the legislative branch to ensure that D.C. residents have more protection than the judicial branch was willing to recognize. Until then, congressional action is premature.0 -
Funny how the Cato Institute fought this case, and the NRA jumps on the bandwagon now.
Kind of reminds me what me history teacher said about the killing of MLK. Jesse Jackson's picture is in the history book. The high school teacher makes a comment about "someone famous dies and the cock roaches come out of the wood work."
I wonder if this applies to the NRA.0 -
wait a minute...quote:"The amendment does not protect the right of militiamen to keep and bear arms, but rather the right of the people," the majority opinion said. ...they mean to say
quote:"The amendment protects not only the right of militiamen to keep and bear arms, but also the right of the people," the majority opinion said. ...0 -
This could be a two edged sword. The appeal could be heard by the U.S. Supreme court, who could rule that the right to bear arms is a collective right and not an individual right. This would mean that only the "militia" can have guns, the liberals love to say that the "militia" is the National Guard, so welcome to some really restrictive new gun laws, which have the backing of the Supreme Court. 0 -
quote:Originally posted by allen griggs
This could be a two edged sword. The appeal could be heard by the U.S. Supreme court, who could rule that the right to bear arms is a collective right and not an individual right. This would mean that only the "militia" can have guns, the liberals love to say that the "militia" is the National Guard, so welcome to some really restrictive new gun laws, which have the backing of the Supreme Court.
Absolutely right. Look what the Supreme Court did with emminent domain. The Fifth Amendment is quite clear on property rights. If this ruling had come down in, 2003, we might have had a better chance. BTW the Wall Street Journal ran a great article on Clarence Thomas- it seems he has a lot of influence on the court.0 -
quote:Originally posted by lfi guy
quote:Originally posted by allen griggs
This could be a two edged sword. The appeal could be heard by the U.S. Supreme court, who could rule that the right to bear arms is a collective right and not an individual right. This would mean that only the "militia" can have guns, the liberals love to say that the "militia" is the National Guard, so welcome to some really restrictive new gun laws, which have the backing of the Supreme Court.
Absolutely right. Look what the Supreme Court did with emminent domain. The Fifth Amendment is quite clear on property rights. If this ruling had come down in, 2003, we might have had a better chance. BTW the Wall Street Journal ran a great article on Clarence Thomas- it seems he has a lot of influence on the court.
This SCOTUS is quite different than the last. You have at least four very friendly justices on the court right now.0 -
quote:Originally posted by Captplaid
Funny how the Cato Institute fought this case, and the NRA jumps on the bandwagon now.
Kind of reminds me what me history teacher said about the killing of MLK. Jesse Jackson's picture is in the history book. The high school teacher makes a comment about "someone famous dies and the cock roaches come out of the wood work."
I wonder if this applies to the NRA.
Huh? The NRA wasn't leading the charge?? Well I'll be!0 -
...SAW THAT! The most anti-gun city in the US...LOST!!!![:D][:D][:D]
I bet the Brady Bunch is whinning and wringing their hands this morning!..[:p] YIIPPPIIIEEE!!
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quote:Originally posted by allen griggs
This could be a two edged sword. The appeal could be heard by the U.S. Supreme court, who could rule that the right to bear arms is a collective right and not an individual right. This would mean that only the "militia" can have guns, the liberals love to say that the "militia" is the National Guard, so welcome to some really restrictive new gun laws, which have the backing of the Supreme Court.
Allen griggs,
in our thirst for good news from Government on gun rights most of us overlooked this small but important detail. Very perceptive. You are right in your pessimism here, this could very well be a setup from word go. It could be the old magicians tactic of diversion, they get the crowd watching the right hand and the left hand does the "magic". We'll see what happens.0 -
VOTE on Gun BAN overturn:
www.nbc4.com
www.wtopnews.com0 -
quote:Originally posted by allen griggs
This could be a two edged sword. The appeal could be heard by the U.S. Supreme court, who could rule that the right to bear arms is a collective right and not an individual right. This would mean that only the "militia" can have guns, the liberals love to say that the "militia" is the National Guard, so welcome to some really restrictive new gun laws, which have the backing of the Supreme Court.
Not necessarily disagreeing but responding.
In the meat of this ruling, pages 12 to 46, these judges deal with this issue. They went phase by phase and at times word by word to explain what the second amendment means, the intent of the Founding Fathers, if they intended otherwise, the ammendment would have been stated differently. For this to be overturned by the entire D.C Court of Appeals or the SCOTUS, they are going to have a hard time explaining why this appeal is wrong.
These guys did there homework quite well. This is going to be a slow process. This case has been around for a long time and great reward doesn't come without great risk. With this ruling the momentum is in our favor.
I wonder how Justice John Paul Stevens health is lately. Is he feeling old?0 -
You're right Captplaid, this ruling appears to be very well written. I'm not an attorney and don't pretend to be, but the majority opinion seems to have covered the basses pretty well in terms of historical precedent, historical definition of terms, and subsequent laws and rulings by many of the same group responsible for the 2nd in the first place. I read all 75 pages and took about 4 pages of notes, and they seemed to cover the waterfront.
They also covered the rules pertaining to the creation of a militia, the responsibilities of a militiaman to supply his equipment and what that meant, and the timing of the actual "organization" of the militia relative to the implication of that term to the "organized militia" term in the 2nd. They left little doubt about their interpretation of the various portions of the 2nd Amendment.
The nice thing about this case is that there just doesn't seem to be any baggage attached to it. There are no drug dealers claiming some whacked out intrusion on their rights, no requests for a "right to carry" someplace other than in their own home, and no question about how a gun was used in some shooting. It is just a nice clean claim of the right to self defense in your own house.
It would seem that a case of this type has the best chance of a positive ruling by the SCOTUS since it doesn't involve the tangential questions, like getting caught in a courthouse etc., that have tainted so many other possible cases in the past. The timing of the construction of the membership of the SCOTUS has not been more promising in terms of the potential for a conservative decision in decades, so this might be the one to bet the farm on. It has to come sometime and there won't be many better cases than this to establish the baseline right to own weapons.
If the individual right to own firearms can be confirmed, then it is possible to begin to chip away at the restrictions on the types that can be owned, where they can be carried, and what right one has to use them. All of those questions have long been in danger in the past when we had liberal courts that viewed "right to own" as a fallacy - you just didn't dare go before those courts because it was going to be a guaranteed loss.[:)]0 -
Why is it when an abortion law is determined to be unconstitutional by an appellate court, the law is not enforced while it is being appealed, but when a firearm restriction law is determined to be unconstitutional, it is still enforced while being appealed? 0
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