As reported and summarized here, a divided three-judge panel for the United States Court of Appeals for the D.C. circuit has ruled “that the District of Columbia’s gun control laws violate individuals’ Second Amendment rights”. “According to the majority opinion, “[T]he 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 full opinion is well worth reading. Compared to most dishonest mainstream constitutional interpretation, this opinion is a breath of fresh air.
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.
The good guys here are Judges Laurence H. Silberman and Thomas B. Griffith. Judge Karen LeCraft Henderson dissented.I also especially liked this very federalist comment: “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.” (emphasis added). I think this one comment is arguably more revolutionary than the gun-rights holding. (For an interesting view sort of reverse of or complementary to this, see Life on a Federal Island in the Civilian Sea, Miss. C. L. Rev. 1994, by William E. Crawford (one of my former law profs). Crawford makes the intriguing argument that because of the Erie doctrine (a Supreme Court doctrine that specifies that a federal court sitting in diversity jurisdiction over a state law claim must apply state substantive common law in resolving the dispute) and the unique legal nature of Louisiana’s civil-law legal system (the other states are common law) under which “there is no rule of stare decisis” (case precedents are not strictly binding; statute and code law is primary)–that federal courts are not only as competent to interpret Louisiana law as Louisiana state courts, but that federal courts are not even bound by state court interpretations of state law–even those of the Louisiana Supreme Court!)
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Remarkable!
A question for Stephan: given your views on Kelo and federalism, etc., what is your opinion of the dissenting judge’s claim that “the Second Amendment’s protections … do not extend to the District of Columbia, because it is not a State”?
Excellent news. About time D.C. got told where they can stuff their gun ban.
Roderick, I don’t agree completely w/ the majority opinion (e.g. the idea that gun rights can be limited, just as free speech rights can, though it would be hard for them to argue otherwise, given constitutional jurisprudence; and the implicit idea that it *matters* what the second amendment says–the 10th amendment should suffice, since the feds are not given power to regulate firearms in the first place), but as far as I can follow the dissent’s reasoning, I disagree with it. She seems to argue that the prefatory phrase plays into the grant of rights/limit of power, and only grants a collective right to arms so far as it is used for a state militia; and that since DC is not a state, and has no militia, there is no right at all. I think this is completely wrong. For one, I think the initial phrase is merely precatory or explanatory. Second, I think she fails to see that the second amendment is fundamentally a limit on the power of the feds, but this just reinforces the general limited-powers scheme of the federal Constitution under which the feds have no power to regulate firearms even if there were no second amendment at all. (Not only that, to argue that the second amendment contains no individual right to bear arms and “therefore” that there is no such right is contrary to the ninth amendment which permits just such a construction.)
What do you think?
DC is a socialist nightmare. I live right next door to DC, and it’s a miserable, hateful, ugly city that’s full of conflict and depravity. This is at the same time a tiny step forward and a great relief for DC residents who desperately need freedom. We’re always battling it out with Detroit for the highest murder rate in the country. There’s practically a cop on every street corner in DC, yet one look at them and you can tell most of them are unfit to run down a criminal, and they spend most of their time enforcing DC’s parking and traffic laws.
This very short article sums up my feelings on DC:
http://answers.yahoo.com/question/index?qid=20070228092237AAZk1j9
Not bad.
Best part: “That right existed prior to the formation of the new government”
How radical, the belief that rights exist prior to the state. Now let’s apply that to everything else.
Roderick T. Long, One thing to remember in this as far as Constitutional law is that DC is supposed to be the only territory that the National Government is allowed to control.
There is often an argument made that the Bill of Rights only apply to the Federal Government. This is obviously true of the First Amendment, but I don’t see it as true of all of them. I am not saying that Federal judges should rule local laws unconstitutional, except in the case of DC, where it is Federal territory. (one reason I would not want to live there)
The individual states that make up the union are (supposedly) part of it by their own choice. Also, many government officials at the state and local level take an oath to uphold the Constitution of the state they live in and the US Constitution.
I think a Federal judge would be acting beyond his jurisdiction in striking down an unconstitutional local law, but a judge of one of the individual states would be correct in striking down a state law on the grounds that it violates the US Constitution. A jury would also be right in acquitting a defendant who is charged with an unconstitutional law.
Stephan and John,
Yes, that seems reasonable.
So what’s the future for this ruling? To whom does the District appeal it (I assume they’ll appeal)? Directly to the 9 Super-friends, or is there an intermediate step?
Roderick T. Long:
The appeal goes to the U.S. Supreme Court. Considering that Chief Justice Roberts is the Circuit Justice for the DC circuit, its hearing in the Supreme Court should be expedited.
roderick, I believe this was an appellate decision. So the next appeal would be to the S.Ct. However, it was only a 3-judge panel of hte appeals court, so maybe the District can persuade the Circuit to re-hear it “en banc”–all of them. So all 11 or so (?) judges hear it and make a decision. If they have the same holding then it could go to the Supremes. But probably an en-banc rehearing would be sought first… just a guess.
We have the Constitutional Right to Bear Arms and Defend Ourselves – 2nd Amendment
“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.
It is a right not a privilege, just like you have the right to live and breath.
Right to Bear Arms is an unalienable right; it cannot be given to someone by someone else, they already have it at birth, and thus, it cannot be taken away no matter how good the reason seems to be.
“Do not punish or deny the rights of the masses for the sins of the few”
This applies to any and all rights and privileges stated in the Constitution of the United States.
The Second Amendment is one of our most cherished. The right to keep and bear arms is what keeps government subservient to its citizenry. Without the right to bear arms, we would have anarchy in the streets, the criminals would still have guns, and violent crime would escalate.
Thomas Paine:
“Arms, like laws, discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property.”
We plan on exercising these rights to the fullest extent of the Constitutional Law.
Our society today is brainwashed that when some people abuse their constitutional rights we must punish all of society and revoke that right and privilege.
When some one uses a weapon, any weapon, gun, knife, pick, ax, saw, car, etc. they get prosecuted, when convicted, they are sentenced not all the people of the country.
Abuse by some people has been going on since creation and will continue till the end of time. We must control and punish the abusers, not the whole society.
Case and point is the punishment society is taking today due to terrorism. Since governments are helpless to fight and control terrorism they punish the masses in the name of safety and cause extreme economic hardship and the loss of our constitutional liberties.
There are Nations that under their Laws citizens are permitted to posses firearms. Check out some of those countries. Crime rate has not increased. Abuses happen, the abusers are punished and not the rest of society.
It is a known historical fact that the Criminal will always find a way to get a weapon.
Restricting the average citizen from having a weapon to protect himself and his family, leaves the door open to the criminal to violate those citizens, due to the knowledge that the average citizen has no weapon and cannot protect himself and his family.
A weapon is a tool like any other tool and should be used properly.
A knife, pick, ax, saw, car, etc. is also a tool that must be used properly. It is not outlawed, is it?
A car in today’s society is an absolute must. Do the citizens of this country know how many people are killed and injured by automobiles every year, it amounts to thousands, which is much less than with guns.
And to those who would say this was but a “temporary violation” for the greater good, Ben Franklin admonishes;
“THOSE WHO WOULD GIVE UP LIBERTIES TO OBTAIN FREEDOM DESERVE NEITHER.
Folks, we live in dangerous times, a government that does not trust its citizens to bear arms, is a government not to be trusted by its citizens.
As the threat to all of our liberties continue basically unabated, remember the words of the great political philosopher Edmund Burke; “The only way for evil men to prosper is for good men to do nothing.”
The right to keep and bear arms should be of great importance to all Americans, if we are to remain a free country we MUST NOT let this right be taken from us
Remember, freedom isn’t free. God Bless you, and God, please bless the United States of America.
By: YJ Draiman, Northridge, CA
PS
The Supreme Court ruled on the Heller case at the end of its term in June, 2008. The Court, which found for Heller in a close 5-4 decision, wrote that the 2nd Amendment did, in fact, protect an individual right. While the court was careful to note that the case did not call into question any laws that regulate guns, it did state, unequivocally, that Heller and his fellow petitioners had a right to own guns in their home. The Court also ruled that while reasonable regulation may be permitted, the requirement that guns be locked and disassembled was not reasonable.
Supreme Court affirms fundamental right to bear arms
Tuesday, June 29, 2010;
MCDONALD v. CHICAGO Syllabus
The Fourteenth Amendment incorporates the Second Amendment right, recognized in Heller, to keep and bear arms for the purpose of self defense. Pp. 5–9, 11–19, 19–33.
The Second Amendment provides Americans a fundamental right to bear arms that cannot be violated by state and local governments, the Supreme Court ruled Monday in a long-sought victory for gun rights advocates.
The 5 to 4 decision does not strike down any gun-control laws, nor does it elaborate on what kind of laws would offend the Constitution. One justice predicted that an “avalanche” of lawsuits would be filed across the country asking federal judges to define the boundaries of gun ownership and government regulation.
But Justice Samuel A. Alito Jr., who wrote the opinion for the court’s dominant conservatives, said: “It is clear that the Framers . . . counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.”
The decision extended the court’s 2008 ruling in District of Columbia v. Heller that “the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.” That decision applied only to federal laws and federal enclaves such as Washington; it was the first time the court had said there was an individual right to gun ownership rather than one related to military service.
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