Appeals Court Overturns D.C. Gun Ban

[anthonybpugh]

WASHINGTON (AP) -- 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 upon his or her continued intermittent enrollment in the militia."

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

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.

http://www.breitbart.com/news/2007/03/09/D8NOQQ480.html

[lildog]

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

You must not defend yourself!  You must be an unarmed sheep!  You must hand over more of your income to the government so they can protect you from those who want to steal your money!

[error]

Wow, some actual good news out of D.C.

[LFoD]

Hello All, I found this to be a fascinating read. It is the DC Circuit Courts ruling on the 2nd Amendment. The court rules that DC hand gun ban was unconsitutional. Furhtermore they address the intepretation of the 2nd. This is a long but partial portion that I found very interesting and uplifting.
?
As we noted, the Second Amendment provides:
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.
U.S. CONST. amend. II.
?
The District of Columbia argues that the prefatory clause declares the Amendment?s only purpose?to shield the state militias from federal encroachment?and that the operative clause, even when read in isolation, speaks solely to military affairs and guarantees a civic, rather than an individual, right. In other words, according to the District, the operative clause is not just limited by the prefatory clause, but instead both clauses share an explicitly civic character. The District claims that the Second Amendment ?protects private possession of weapons only in connection with performance of civic duties as part of a well-regulated citizens militia organized for the security of a free state.? ? But because the District reads ?a well regulated Militia? to signify only the organized militias of the founding era?institutions that the District implicitly argues are no longer in existence today?invocation of the Second Amendment right is conditioned upon service in a defunct institution. ? in fact, at oral argument, appellees? counsel asserted that it would be constitutional for the District to ban all firearms outright. In short, we take the District?s position to be that the Second Amendment is a dead letter. ? Thus the Amendment should be understood to check federal power to regulate firearms only when federal legislation was directed at the abolition of state militias, because the Amendment?s exclusive concern was the preservation of those entities.

At first blush, it seems passing strange that the able lawyers and statesmen in the First Congress (including James Madison) would have expressed a sole concern for state militias with the language of the Second Amendment. Surely there was a more direct locution, such as ?Congress shall make no law disarming the state militias? or ?States have a right to a well-regulated militia.?

The District?s argument?as strained as it seems to us?is hardly an isolated view. In the Second Amendment debate, there are two camps. On one side are the collective right theorists who argue that the Amendment protects only a right of the various state governments to preserve and arm their militias. So understood, the right amounts to an expression of militant federalism, prohibiting the federal government from denuding the states of their armed fighting forces. On the other side of the debate are those who argue that the Second Amendment protects a right of individuals to possess arms for private use. To these individual right theorists, the Amendment guarantees personal liberty analogous to the First Amendment?s protection of free speech, or the Fourth Amendment?s right to be free from unreasonable searches and seizures. However, some entrepreneurial scholars purport to occupy a middle ground between the individual and collective right models. The most prominent in-between theory developed by academics has been named the ?sophisticated collective right? model.   The sophisticated collective right label describes several variations on the collective right theme. All versions of this model share two traits: They (1) acknowledge individuals could, theoretically, raise Second Amendment claims against the federal government, but (2) define the Second Amendment as a purely civic provision that offers no protection for the private use and ownership of arms.

The District advances this sort of theory and suggests that the ability of individuals to raise Second Amendment claims serves to distinguish it from the pure collective right model. But when seen in terms of its practical consequences, the fact that individuals have standing to invoke the Second Amendment is, in our view, a distinction without a difference. ? Both the collective and sophisticated collective theories assert that the Second Amendment was written for the exclusive purpose of preserving state militias, and both theories deny that individuals qua individuals can avail themselves of the Second Amendment today. The .. District appears to argue? the National Guard, is fully equipped by the federal government, creating no need for individual ownership of firearms. It appears to us that for all its nuance, the sophisticated collective right model amounts to the old collective right theory giving a tip of the hat to the problematic (because ostensibly individual) text of the Second Amendment. The lower courts are divided between these competing interpretations. Federal appellate courts have largely adopted the collective right model.  Only the Fifth Circuit has interpreted the Second Amendment to protect an individual right. State appellate courts, whose interpretations of the U.S. Constitution are no less authoritative than those of our sister circuits, offer a more balanced picture. And the United States Department of Justice has recently adopted the individual right model. ?

Because we have no direct precedent?either in this court or the Supreme Court?that provides us with a square holding on the question, we turn first to the text of the Amendment.

We start by considering the competing claims about the meaning of the Second Amendment?s operative clause: ?the right of the people to keep and bear Arms shall not be infringed.? ? The District?s primary argument is that ?keep and bear Arms? is best read in a military sense, and, as a consequence, the entire operative clause should be understood as granting only a collective right. The District also argues that ?the right of the people? is ambiguous as to whether the right protects civic or private ownership and use of weapons.

In determining whether the Second Amendment?s guarantee is an individual one, or some sort of collective right, the most important word is the one the drafters chose to describe the holders of the right??the people.? That term is found in the First, Second, Fourth, Ninth, and Tenth Amendments. It has never been doubted that these provisions were designed to protect the interests of individuals against government intrusion, interference, or usurpation. We also note that the Tenth Amendment??The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people??indicates that the authors of the Bill of Rights were perfectly capable of distinguishing between ?the people,? on the one hand, and ?the states,? on the other. The natural reading of ?the right of the people? in the Second Amendment would accord with usage elsewhere in the Bill of Rights. The District?s argument, on the other hand, asks us to read ?the people? to mean some subset of individuals such as ?the organized militia? or ?the people who are engaged in militia service,? or perhaps not any individuals at all?e.g., ?the states.? ? These strained interpretations of ?the people? simply cannot be squared with the uniform construction of our other Bill of Rights provisions. Indeed, the Supreme Court has recently endorsed a uniform reading of ?the people? across the Bill of Rights. ? ?that we should not regard ?the people? in the Second Amendment as somehow restricted to a small
subset of ?the people? meriting protection under the other Amendments? use of that same term.

In sum, the phrase ?the right of the people,? ?, leads us to conclude that the right in question is individual. ?

(My Comment: This part is beautiful)

The wording of the operative clause also indicates that the right to keep and bear arms was not created by government, but rather preserved by it. Hence, the Amendment acknowledges ?the right . . . to keep and bear Arms,? a right that pre-existed the Constitution like ?the freedom of speech.? Because the right to arms existed prior to the formation of the new government, ?, the Second Amendment only guarantees that the right ?shall not be infringed.? ? The right of selfpreservation, in turn, was understood as the right to defend oneself against attacks by lawless individuals, or, if absolutely necessary, to resist and throw off a tyrannical government.

When we look at the Bill of Rights as a whole, the setting of the Second Amendment reinforces its individual nature. The Bill of Rights was almost entirely a declaration of individual rights, and the Second Amendment?s inclusion therein strongly indicates that it, too, was intended to protect personal liberty.
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.
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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.

It keeps going as this is only half way through and there is more I would love to add but it would probaly be too long of a post. The court ripped apart the gun control argument and set an excellent precedence.  The rest can be found here http://www.drudgereport.com/04-7041a.pdf

[KurtDaBear]

D.C. officials are already wringing their hands and planning an appeal.  They also promised to continue to enforce the ordinance during the appeals process, speaking of arrogant and tyrannical governments. 

I'm willing to bet that if the plaintiffs are able to get a court order restraining enforcement during the appeals process that crime rates in D.C. will fall rather than rise.

[error]

Homeland Stupidity is already all over this.

[Tyler Stearns]

I'm in the middle of reading it right now.  It's a pretty good read so far.

[error]

Where have I seen this before?

[Nicholas Gilman]

  HR 1022 is the next battle in the war on liberty.  Its like Assault Weapons Ban - Part II.
Most of the sponsors represent states which are anti-firearms ownership, and
I find its those states have some of the highest crime rates in the nation.

    Legislation allowing nationwide reciprocity of concealed carry permits/licenses/crown proclamations
is underway as well.  I'm concerned about the possibility of compromises from anti-2nd amendment states though.

[Lloyd Danforth]

"Annie's Got Her Gun"

by Ann Coulter, from George Magazine

About a year ago, a mugger just waltzed right up to me on a bridge here in
Washington, D.C. It was early evening, and I was a stone's throw from my
apartment in what is considered a nice neighborhood, as neighborhoods go in
the Murder Capital -- the richly deserved nickname for the nation's capital.

I won't belabor my cunning and completely fortuitous escape, except to say
that for the few minutes I was standing there waiting to be mugged, I was
fuming. I knew he knew that I didn't have a gun.

It's illegal to carry a handgun here in the Murder Capital. Not merely
illegal but a felony that carries up to a five-year maximum sentence.

Just as I could look at my prospective mugger and see that he was not the
kind of fellow who would be a fanatic about property rights and bodily
integrity, he could see from 50 yards that I was not the type to be
committing felonies.

I wanted a gun, but more than that I wanted him to think I might possibly
have a gun. I wanted him to at least accord me the respect I get from
criminals in other cities, where they have to exercise a little creativity,
lying in wait, sneaking up from behind, hiding in bushes and dark alleyways
-- that sort of thing. No, in D.C. muggers just walk right up to you on a
brightly lit street. As an apparently law-abiding citizen, I am
ostentatiously defenseless.

But let's forget about completely defenseless me on the bridge for a moment.

The framers' primary reason for including the right to bear arms in the
Bill of Rights was to allow people to protect themselves from tyrannical
government -- just like the vastly overrated First Amendment. As Alexander
Hamilton observed cheerily in Federalist 29, if the government were to
"form an army of any magnitude that army can never be formidable to the
liberties of the people while there is a large body of citizens, little, if
at all, inferior to them in discipline and the use of arms, who stand ready
to defend their rights and those of their fellow citizens."

Some may be willing to rely on withering editorials in the New York Times
to preserve their liberty. I'm counting on a sleek and tasteful SIG-Sauer.
If the courts started interpreting the Second Amendment the way they
interpret the First, we'd have a right to bear nuclear arms by now.

Interestingly, the Supreme Court is incessantly having to remind Americans
of their First Amendment rights, issuing more than 100 decisions in the
past half century alone. The Court has ruled on the Second Amendment in
only a handful of cases, the last time in 1939.

But still, about half the citizenry deeply, passionately believe that they
have a right to bear arms. Give the First Amendment no support from the
courts for over half a century and see if anyone remembers why we're
supposed to let Nazis march in Skokie.

But the half of the country that intuitively assumes the right to bear arms
doesn't live in my neighborhood. That's why I'm getting exasperated with
the constitutional argument. Too few people -- girl people in particular
-- appreciate the central point: Guns are our friends.

When it comes to the First Amendment, everyone gets warm patriotic
feelings, tearing up over John Stuart Mill's marketplace of ideas. They
think immediately of our right to engage in political speech, scientific
research, avant-garde art, and to burn politicians in effigy (or maybe
that's just me). Speech on the fringe, like Aryan Nation propaganda or
Hustler magazine is understood to be an unpleasant, if inevitable,
by-product of a freedom we cherish.

But with the Second Amendment, it's all Hustler magazine. No upside, just
school shootings and all those apocryphal "gun accidents." (In 1945, for
every million Americans there were 350,000 firearms and 18 fatal gun
accidents. By 1995, there were 850,000 firearms per million, and fatal gun
accidents had fallen to six.)

Guns are our friends, because in a world without guns I'm what is known as
prey. Almost all females are. Any male -- even the sickliest 98-pound
weakling -- could overpower me in a contest of brute force against brute
force. For some reason, I'm always asked whether I wouldn't prefer a world
without guns. No, I'd prefer a world in which everyone is armed, even the
criminals who mean to cause me harm. Then I'd at least have a fighting
chance.

What the arms-control faithful really want is a world without violence, not
a world without weapons. These are the ideological descendants of the
authors of the Kellogg-Briand Pact, which purported to outlaw war. But we
can't have a world without violence, because the world is half male and
testosterone causes homicide. A world with violence -- that is to say,
with men -- but without weapons is the worst of all possible worlds for
women. As the saying goes, God made man and woman; Colonel Colt made them
equal.

Prey like me use guns against predators about a million times a year.
Fifteen different studies (including those sponsored by gun control
advocates) have arrived at the following estimates: at the low end, several
hundred thousand times per year; at the high end, several million.

I especially want potential assailants to have to worry that I might be
carrying. In numerous surveys, criminals have confirmed the blindingly
obvious point that they are disinclined to attack a victim who might be
armed. Countries with those fabulously low crime rates and fabulously
fascistic gun control laws -- such as Canada, the Netherlands, and Britain
--- have more burglaries of occupied homes per capita than we do. Canada's
burglary rate of occupied homes is more than three times that of the
armed-to-the-teeth U.S. Although the murder rate is lower in Britain,
rape, robbery, burglary, and assault are all substantially higher there
than in the U.S.

It must be said, the framers were not insensate to the crime-prevention
qualities of firearms. In the late eighteenth century, standing armies had
become nothing more than roving bands of criminals. The Second Amendment
was, in part, a response to those early cases of police brutality. (Why is
it that the same people who have the least confidence in the police and the
military are the most willing to allow only the police and the military to
have guns?)

Thomas Jefferson, for example, copied into his book of favorite quotes an
observation by Cesare Beccaria, the founder of the science of criminology:
"Laws that forbid the carrying of arms . . . disarm only those who are
neither inclined nor determined to commit crimes . . . . Such laws make
things worse for the assaulted and better for the assailants; they serve
rather to encourage than to prevent homicides, for an unarmed man may be
attacked with greater confidence than an armed man."

That night in Washington, by the way, I was rescued by a man. I'm all for
men; I like to have them around all the time. But sometimes they can't be.
Sometimes they have to go buy things for us. More pertinently, sometimes
they're ex-husbands coming after us with machetes. We live in a world in
which men are supposed to freeze when we say no, our bodily integrity is
sacrosanct, we are autonomous beings, I am woman, hear me roar -- but we're
not allowed to defend ourselves from a physical attack with the only
effective means possible. Just stand waiting on the bridge and hope for a
nice man to come along.

[KBCraig]

"Annie's Got Her Gun"

by Ann Coulter, from George Magazine

I'd given up reading Ann Coulter more than a year ago, because she changed from "old right" conservative leanings, to a thrower of incendiary bombs. She switched from ideology to inflammatory; her schtick became making news by insulting people.

But this was a good column. Thanks, Lloyd.

[Tyler Stearns]

An editorial that was in the Washington Post yesterday:

Dangerous Ruling

An appeals court ruling would put handguns back in D.C. homes.

IN OVERTURNING the District of Columbia's long-standing ban on handguns yesterday, a federal appeals court turned its back on nearly 70 years of Supreme Court precedent to give a new and dangerous meaning to the Second Amendment. If allowed to stand, this radical ruling will inevitably mean more people killed and wounded as keeping guns out of the city becomes harder. Moreover, if the legal principles used in the decision are applied nationally, every gun control law on the books would be imperiled.

The 2 to 1 decision by the U.S. Court of Appeals for the D.C. Circuit struck down sections of a 1976 law that bans city residents from having handguns in their homes. The court also overturned the law's requirement that shotguns and rifles be stored disassembled or with trigger locks. The court grounded its unprecedented ruling in the finding that the Second Amendment right to bear arms extends beyond militias to individuals. The activities the Second Amendment protects, the judges wrote, "are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or continued intermittent enrollment in the militia."

Never before has a law been struck down on that basis. The Supreme Court, in its landmark 1939 decision United States v. Miller, stated that the Second Amendment was adopted "with obvious purpose" of protecting the ability of states to organize militias and "must be interpreted and applied with that end in view." Nearly every other federal court of appeals has concurred in that finding. The dissenting judge in yesterday's opinion, Karen LeCraft Henderson, a Republican appointee like the other two judges on the panel, rightly lambasted the majority for its willful disregard of Supreme Court precedent.

While the ruling caught observers off guard, it was not completely unexpected, given the unconscionable campaign, led by the National Rife Association and abetted by the Bush administration, to broadly reinterpret the Constitution so as to give individuals Second Amendment rights. Indeed, the D.C. lawsuit, by six residents assisted by the Cato Institute, was filed in 2003, just months after then-Attorney General John D. Ashcroft said gun bans are unconstitutional.

The NRA predictably welcomed yesterday's ruling. According to its myth, only criminals have had guns in the city and now law-abiding citizens will be able to arm themselves for protection. Mayor Adrian M. Fenty (D) counters that argument with the sad record of what results from a proliferation of guns. As he points out, more guns mean only more violence, and the city already has too much of both. It is important to note that the ban on handguns will stay in effect while the city considers whether to appeal.

That is likely, Mr. Fenty announced. The risk here is that an appeal could lead to an unfavorable Supreme Court ruling, and a legal principle that now applies only to the residents of the nation's capital would extend to the entire nation. Yet doing nothing wouldn't serve the best interests of the city and its public safety. Nor, for that matter, would it serve the nation's interest to leave this dangerous ruling unchallenged.

[Lloyd Danforth]

"Annie's Got Her Gun"

by Ann Coulter, from George Magazine

I'd given up reading Ann Coulter more than a year ago, because she changed from "old right" conservative leanings, to a thrower of incendiary bombs. She switched from ideology to inflammatory; her schtick became making news by insulting people.

But this was a good column. Thanks, Lloyd.

I don't read her either,  but, When she is on tv I can't change the channel!