Feds finally recognize second amendment rights
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!)
Comments (9)
Roderick T. Long
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"?
Published: March 9, 2007 12:54 PM
Mark Brabson
Excellent news. About time D.C. got told where they can stuff their gun ban.
Published: March 9, 2007 1:27 PM
Stephan Kinsella
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?
Published: March 9, 2007 1:43 PM
Angelo
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
Published: March 9, 2007 1:49 PM
Manuel
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.
Published: March 9, 2007 5:04 PM
John Delano
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.
Published: March 10, 2007 6:21 AM
Roderick T. Long
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?
Published: March 14, 2007 11:01 AM
Mark Brabson
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.
Published: March 14, 2007 4:22 PM
Stephan Kinsella
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.
Published: March 14, 2007 11:40 PM