Article On The DC Court Ruling From The ABA
Gun Control Back on the Burner
Experts disagree whether Supreme Court will hear appeal of D.C. Circuit ruling
By Stephanie Francis Ward
In the contentious battle over gun control, it seems even the fate of a recent appellate decision is open for vociferous debate.
The one matter on which both sides agree is that the decision, issued March 9, in a case filed four years ago, brings the argument over the Second Amendment's guarantee of "the right of the people to keep and bear arms" back to the front burner.
Bruce Ackerman, a Yale Law School professor, says the decision, which strikes down portions of Washington, D.C., gun control laws, will be short-lived. Parker v. District of Columbia, No. 04-7041.
He notes the opinion by the U.S. Court of Appeals for the District of Columbia Circuit was 2-1, with a dissent by Judge Karen LeCraft Henderson criticizing the majority for what she says is its disregard of U.S. Supreme Court precedent.
"The court of appeals is way out of line here," Ackerman says. "There's settled law, and suddenly two judges say, `Let's have a little micro-revolution here.' "
"This is judicial vanguardism," Ackerman adds. He suspects the opinion will be reversed en banc, and doubts the case could get the four votes needed for Supreme Court review.
But Nelson Lund, a professor at George Mason University School of Law in Arlington, Va., is among those who disagree. Much of his academic work centers on studying the Second Amendment.
"I'd be surprised if this were vacated by an en banc court," Lund says. "If it stands, I think it's probable that the U.S. Supreme Court will accept [the case]."
"If the Supreme Court decides the case on the legal merits, it's a very easy case," Lund adds. "This D.C. law is clearly unconstitutional."
The D.C. Circuit's opinion maintains the Second Amendment protects an individual right to bear arms.
The city argued the amendment's authors intended for the provision to apply only to organized militia members. At the time, the country didn't have an organized police force, municipal lawyers maintained, and states needed weapons to shield their militias from federal encroachment. Last week, Washington, D.C., Mayor Adrian M. Fenty said the city will appeal the D.C. Circuit's ruling.
A significant portion of the opinion is devoted to semantics. The amendment's wording-"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"-is divided into two clauses, the opinion states. The operative clause indicates the authors meant that most citizens had a right to bear arms, Judge Laurence H. Silberman wrote, regardless of militia affiliation.
"In sum, the 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 opinion states. "This proposition is true even though `the people' at the time of the founding was not as inclusive a concept as `the people' today."
Also, he writes that the Bill of Rights is almost entirely a declaration of individual rights. Since it includes the Second Amendment, Silberman says, that strongly indicates the provision was intended to protect personal liberty.
"Every other provision of the Bill of Rights, excepting the 10th, which speaks explicitly about the allocation of governmental power, protects rights enjoyed by citizens in their individual capacity," the opinion states. "The Second Amendment would be an inexplicable aberration if it were not read to protect individual rights as well."
One D.C. ordinance that was challenged prohibits carrying a pistol without a license. Obtaining such a license is virtually impossible, the appellants say, because the city generally bars the registration of handguns.
It is not illegal to keep a handgun in your house if it was purchased before 1976, when the city banned handgun ownership. But city ordinances prohibit licensed gun owners from moving the weapon within their private property, and lawfully owned firearms must be kept disassembled or bound by a trigger lock.
The law does allow individuals to have licensed, functional guns to protect businesses or for recreational use, such as hunting.
"But you can't have any type of gun assembled in your house, and it's a misdemeanor to walk around with a gun in your home or on your land," says Alan Gura, a D.C. lawyer who represents the plaintiffs. "The law is extremely far-reaching and very draconian."
One of the six appellants is a Georgetown woman who owns a licensed shotgun. Another worked as a special police officer at a federal courthouse. Off-duty police officers in D.C. cannot carry firearms, and when the man finished his shift, he stored his weapon in a locker at work. He tried to register his gun with the city, the February 2003 lawsuit maintains, but was denied.
"Our mission was very simple-we want the court to focus on the nature of the Second Amendment right," Gura says. "If it means anything at all, it must mean that a law-obeying individual can have an ordinary functioning firearm, including a handgun, inside their house."
The D.C. attorney general's office will not comment on the matter, spokeswoman Traci Hughes says.
David M. Gossett, a D.C. lawyer who submitted an amicus brief supporting the city's position, says the majority decision is disappointing. His brief, filed on behalf of the Brady Center to Prevent Gun Violence, analyzed the history of the Second Amendment.
"We found that the clear understanding of the founding fathers was all about preserving state militias and had nothing to do with an individual right of self-defense," Gossett says.
He says that when the Second Amendment was written, some states did have laws providing an individual right to bear arms. If the framers intended the Second Amendment to protect an individual's right to bear arms, Gossett says, its language would have been more similar to state laws extending such a right.
This is the second federal appeals court ruling to say the Second Amendment extends an individual right to bear arms. The 5th U.S. Circuit Court of Appeals, based in New Orleans, found in 2001 that the Second Amendment does protect an individual right to gun ownership, but the government could restrict that right. U.S. v. Emerson, 270 F.3d 203. But the 9th Circuit, based in San Francisco, found in 2002 that the Second Amendment does not provide an individual right to own guns. Silveira v. Lockyer, 312 F.3d 1052.
Despite numerous attempts since 2001 to use the Second Amendment to overturn various gun ownership bans, the Supreme Court has not ruled on such cases since 1939, when the court found that ownership of certain types of firearms could be restricted. U.S. v. Miller, 307 U.S. 174.
"I think the U.S. Supreme Court has ignored this issue since 1939-to be in the Bill of Rights and have so little precedent is very strange," says Stephen Halbrook, a Fairfax, Va., lawyer who represents firearm associations, manufacturers and owners.
c2007 ABA Journal
Experts disagree whether Supreme Court will hear appeal of D.C. Circuit ruling
By Stephanie Francis Ward
In the contentious battle over gun control, it seems even the fate of a recent appellate decision is open for vociferous debate.
The one matter on which both sides agree is that the decision, issued March 9, in a case filed four years ago, brings the argument over the Second Amendment's guarantee of "the right of the people to keep and bear arms" back to the front burner.
Bruce Ackerman, a Yale Law School professor, says the decision, which strikes down portions of Washington, D.C., gun control laws, will be short-lived. Parker v. District of Columbia, No. 04-7041.
He notes the opinion by the U.S. Court of Appeals for the District of Columbia Circuit was 2-1, with a dissent by Judge Karen LeCraft Henderson criticizing the majority for what she says is its disregard of U.S. Supreme Court precedent.
"The court of appeals is way out of line here," Ackerman says. "There's settled law, and suddenly two judges say, `Let's have a little micro-revolution here.' "
"This is judicial vanguardism," Ackerman adds. He suspects the opinion will be reversed en banc, and doubts the case could get the four votes needed for Supreme Court review.
But Nelson Lund, a professor at George Mason University School of Law in Arlington, Va., is among those who disagree. Much of his academic work centers on studying the Second Amendment.
"I'd be surprised if this were vacated by an en banc court," Lund says. "If it stands, I think it's probable that the U.S. Supreme Court will accept [the case]."
"If the Supreme Court decides the case on the legal merits, it's a very easy case," Lund adds. "This D.C. law is clearly unconstitutional."
The D.C. Circuit's opinion maintains the Second Amendment protects an individual right to bear arms.
The city argued the amendment's authors intended for the provision to apply only to organized militia members. At the time, the country didn't have an organized police force, municipal lawyers maintained, and states needed weapons to shield their militias from federal encroachment. Last week, Washington, D.C., Mayor Adrian M. Fenty said the city will appeal the D.C. Circuit's ruling.
A significant portion of the opinion is devoted to semantics. The amendment's wording-"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"-is divided into two clauses, the opinion states. The operative clause indicates the authors meant that most citizens had a right to bear arms, Judge Laurence H. Silberman wrote, regardless of militia affiliation.
"In sum, the 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 opinion states. "This proposition is true even though `the people' at the time of the founding was not as inclusive a concept as `the people' today."
Also, he writes that the Bill of Rights is almost entirely a declaration of individual rights. Since it includes the Second Amendment, Silberman says, that strongly indicates the provision was intended to protect personal liberty.
"Every other provision of the Bill of Rights, excepting the 10th, which speaks explicitly about the allocation of governmental power, protects rights enjoyed by citizens in their individual capacity," the opinion states. "The Second Amendment would be an inexplicable aberration if it were not read to protect individual rights as well."
One D.C. ordinance that was challenged prohibits carrying a pistol without a license. Obtaining such a license is virtually impossible, the appellants say, because the city generally bars the registration of handguns.
It is not illegal to keep a handgun in your house if it was purchased before 1976, when the city banned handgun ownership. But city ordinances prohibit licensed gun owners from moving the weapon within their private property, and lawfully owned firearms must be kept disassembled or bound by a trigger lock.
The law does allow individuals to have licensed, functional guns to protect businesses or for recreational use, such as hunting.
"But you can't have any type of gun assembled in your house, and it's a misdemeanor to walk around with a gun in your home or on your land," says Alan Gura, a D.C. lawyer who represents the plaintiffs. "The law is extremely far-reaching and very draconian."
One of the six appellants is a Georgetown woman who owns a licensed shotgun. Another worked as a special police officer at a federal courthouse. Off-duty police officers in D.C. cannot carry firearms, and when the man finished his shift, he stored his weapon in a locker at work. He tried to register his gun with the city, the February 2003 lawsuit maintains, but was denied.
"Our mission was very simple-we want the court to focus on the nature of the Second Amendment right," Gura says. "If it means anything at all, it must mean that a law-obeying individual can have an ordinary functioning firearm, including a handgun, inside their house."
The D.C. attorney general's office will not comment on the matter, spokeswoman Traci Hughes says.
David M. Gossett, a D.C. lawyer who submitted an amicus brief supporting the city's position, says the majority decision is disappointing. His brief, filed on behalf of the Brady Center to Prevent Gun Violence, analyzed the history of the Second Amendment.
"We found that the clear understanding of the founding fathers was all about preserving state militias and had nothing to do with an individual right of self-defense," Gossett says.
He says that when the Second Amendment was written, some states did have laws providing an individual right to bear arms. If the framers intended the Second Amendment to protect an individual's right to bear arms, Gossett says, its language would have been more similar to state laws extending such a right.
This is the second federal appeals court ruling to say the Second Amendment extends an individual right to bear arms. The 5th U.S. Circuit Court of Appeals, based in New Orleans, found in 2001 that the Second Amendment does protect an individual right to gun ownership, but the government could restrict that right. U.S. v. Emerson, 270 F.3d 203. But the 9th Circuit, based in San Francisco, found in 2002 that the Second Amendment does not provide an individual right to own guns. Silveira v. Lockyer, 312 F.3d 1052.
Despite numerous attempts since 2001 to use the Second Amendment to overturn various gun ownership bans, the Supreme Court has not ruled on such cases since 1939, when the court found that ownership of certain types of firearms could be restricted. U.S. v. Miller, 307 U.S. 174.
"I think the U.S. Supreme Court has ignored this issue since 1939-to be in the Bill of Rights and have so little precedent is very strange," says Stephen Halbrook, a Fairfax, Va., lawyer who represents firearm associations, manufacturers and owners.
c2007 ABA Journal
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Thanks for posting. Very interesting. 0 -
Gun control as we know it may come to an end.....[:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D]
Told ya so Sarah![;)]0 -
quote:Originally posted by p3skyking
Gun control as we know it may come to an end.....[:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D][:D]
Told ya so Sarah![;)]
It may also be overturned; giving the green light for any city to ban guns and transport of guns. That is a very scary potential.0 -
quote:Originally posted by bpost1958
It may also be overturned; giving the green light for any city to ban guns and transport of guns. That is a very scary potential.
Nothing ventured, nothing gained....
Besides, if this ruling hadn't come down, our rights would have been nibbled away, piece by piece, until we had nothing left.
I just want a decision.....I want to know if I still live in America0 -
What is "settled law?" Does that mean the Court can never revisit a previous decision? This is a law school professor saying this or is it a complete moron? Maybe that's a redundancy. Of course the courts revisit rulings. Segregation was ruled Constitutional many times before being struck down.
Would this brain-dead idiot agree that filing a new AWB bill is wrong because since the previous ban has expired that's "settled law?" Somehow I doubt it.
I suppose a law is "settled" with pin-headed Liberals when they agree with the law in question.0 -
Has anyone stopped to ask WHY the Supremes have so seldom ruled on the Second Admendment?
For the simple reason that a logical and honest review of it puts it right where gun people says it does. An individual right that all free men not be barred the possession of firearms.
The anti's know this and it's the reason they have never pushed for a Supreme Court review of it.0 -
I think the appellants will request an "En Banc" decision before appealing to the Supreme Court, meaning that all 14 judges of the Court of Appeals will rehear the case rather than the initial 3-judge panel. I'm sure they're banking on the majority of the judges being liberals who, like Karen LeCraft Henderson, also don't believe the 2nd Amendment applies to the citizens of the District of Columbia (unless they're illegal immigrants, of course) [:(!] 0 -
quote:Originally posted by Spider7115
I think the appellants will request an "En Banc" decision before appealing to the Supreme Court, meaning that all 14 judges of the Court of Appeals will rehear the case rather than the initial 3-judge panel. I'm sure they're banking on the majority of the judges being liberals who, like Karen LeCraft Henderson, also don't believe the 2nd Amendment applies to the citizens of the District of Columbia (unless they're illegal immigrants, of course) [:(!]
Actually, I think this has a good chance of going to the supreme court....The 9th Circuit has ruled gun ownership to be a collective right, the 5th Circuit has ruled it to be an individual right, now the D.C appealate has now issued a ruling.
Several lower courts have weighed in, with conflicting results....The Supreme Courts job is to clear up that confusion.
Even if the En Bloc decision goes against us, I think this one is going to the Supreme Court......for better or worse
I wonder if the NRA is going to jump on the bandwagon now.....0 -
Also a decent article in this week's Economist [March 17th, p.33] 0 -
quote:Originally posted by Spider7115
I think the appellants will request an "En Banc" decision before appealing to the Supreme Court, meaning that all 14 judges of the Court of Appeals will rehear the case rather than the initial 3-judge panel. I'm sure they're banking on the majority of the judges being liberals who, like Karen LeCraft Henderson, also don't believe the 2nd Amendment applies to the citizens of the District of Columbia (unless they're illegal immigrants, of course) [:(!]
For the 14 judges Court of Appeals to reverse this decision, I will be curious what point or mistake the City will argue the last Appeals made error. I will also be curious how the Court of Appeals could refute each point the two judges made. While I am bias, the judges made an excellent argument for their decision.
Basically, I am saying this decision cannot and will not be reversed. The big question is, "Will we get the full auto Tommy gun back?"0 -
the logic is sound, the supreme court is stacked by Bush, I think very good things can come of thi is DC pushes the case to the national level.
I am saving up for my CA RFB, because if the supreme court takes it and agrees, shortly thereafter it will be legal here.0 -
I really do hope this goes in our favor, rember though, most of the supremes are city boys, and they have a different view of things in the cities. 0 -
one paragraph should be noted...
Despite numerous attempts since 2001 to use the Second Amendment to overturn various gun ownership bans, the Supreme Court has not ruled on such cases since 1939, when the court found that ownership of certain types of firearms could be restricted. U.S. v. Miller, 307 U.S. 174.
really does nothing to help stop bans0 -
quote:Originally posted by Fatboy lives
I really do hope this goes in our favor, rember though, most of the supremes are city boys, and they have a different view of things in the cities.
Roberts, Scalia, Thomas, and Alito are knowns.
Justice Anthony Kennedy is key. Any guess about him? He was the judge that refered to international law when declaring those under 18 cannot be sentenced to capital punishment.
While Kennedy has sided with the Conservative justices, some can make the Argument that Kennedy is more of a Libertarian than a Conservative. He often sides for individual rights.
Abortion=individual rights
Homosexual=individual rights
This can be a plus for him voting in favor of the Second Amendment. Libertarians are often in favor for a small federal government and rights for individuals. Classic Libertarian views can run similar to conservatives but there can be some quirkie issues. Many Libertarians support the individual private use of marijuana. Kennedy does not go this far. He says federal laws outlawing marijuana trumps California's "medical use" laws.
Kennedy also supported the taking of private land by the government and selling it to another private organization for development. Some much for individual rights in this case. He's not a slam dunk.0
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