D.C. Circuit Upholds Second Amendment

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I just finished reading the decision, so pardon me if I tend to get wordier than usual -- legalese disease! :D

You can read the decsion here in .PDF format. Adobe Acrobat reader required.

Regarding the argument that D.C. is not a state...
The appellate court pointed out the Supreme Court has unambiguously held that the Constitution and Bill of Rights are in effect in the District of Columbia. This negates much of the dissenting opinion's argument.

Re: 14th Amendment incorporation question (someone raised it)
Because D.C. is not a state, but a federal entity, the 14th Amendment incorporation is a moot point. D.C. is already covered even without the 14th.

I particularly liked the court's thrashing of our Ninth Circuit (aka Ninth Circus) court's ruling;

As we noted above, the “Militia” was vast, including all free, white, able-bodied men who were properly enrolled with a local militia officer. By contrast, the Ninth Circuit has recently (and we think erroneously) read “Militia” to mean a “state-created and state-organized fighting force” that excludes the unorganized populace. Silveira, 312 F.3d at 1069. As Judge Kleinfeld noted, the Ninth Circuit’s decision entirely ignores Miller’s controlling definition of the militia. 328 F.3d at 578 (dissenting from denial of rehearing en banc). The Ninth Circuit’s interpretation of “Militia” also fails to account for the second Militia Act of 1792, id. at 578-82, as well as local federal militia units such as those provided for by the Northwest Ordinance, see Act of Aug. 7, 1789, ch. VIII, 1 Stat. 50, or for the District of Columbia in 1803, Act of March 3, 1803, ch. XX, 2 Stat. 215.
 
Thanks Fast; but ease up on the lawyers; not all of them are scumbags... Just the vast majority. :D


P.S its schizophrantic.
 
A couple of post-script thoughts.

Fast is right. Someone could appeal this case (and probably will) for an en-banc hearing. In that case, the ruling's effect may be suspended until after the en-banc hearing.

Not clear to me is whether the court's decision also impacts the D.C. requirement to get a license for carry a pistol anywhere in the district. In part of the case review, the court wrote:

In order to carry a pistol anywhere in the District (inside or outside the home), one must apply for and obtain an additional license from the Chief of Police, whom the Code gives complete discretion to deny license applications.
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We could see another case where the victors in this case are granted permits to own a firearm but denied the right to move it within the city to their residence or business.

The court spent 33 pages on the history of the militia and it's definition, including an excellent explanation of the Miller case.
 
Well

I suspect if the decision is upheld, DC will try to make fulfillment of the peoples newly granted Constitutional right as difficult as possible. Then we'll have numerous other cases that challenge those restrictions and will look for clarification from the courts as to what exactly constitutes ones freedom to bear arms. No ones Constitutional rights are unlimited (ie cant yell "fire", etc), but what restrictions are too cumbersome.

This should be an interesting couple of years legally, even if the decision doesn't stand.
 
When the Circuit Courts of Appeal reach conflicting decisions on the same issue, the Supreme Court is more likely to grant Certiorari. With the D.C. decision the circuits are further split on the issue of individual/collective right. If the Court does decide to hear this or a similar case in the future, it is by no means a slam dunk that the Court will find that the 2nd Amendment evinces an individual right. The Collective right theory is more prevelant.

The D.C. Court of Appeals decision will certainly be stayed pending either rehearing en banc or further appeal. If rehearing is denied, the Districts only further avenue of appeal will be to petition the Court for certiorari. Cert is discretionary and if granted, it will be very big news. However, there are more issues in the case than solely whether the 2nd Amendment is an individual right.
 
Not clear to me is whether the court's decision also impacts the D.C. requirement to get a license for carry a pistol anywhere in the district.
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It does not. They specifically exclude that portion as the defendant never asked to take the firearm from the home. What they shot down was the interpretation that you needed a permit to transport your firearm from one room in your house to another.

Appellant Heller challenges this provision and a companion provision, § 22-4506, insofar as they appear to ban moving a handgun from room to room in one’s own house, even if one has lawfully registered the firearm (an interpretation the District does not dispute). In order to carry a pistol anywhere in the District (inside or outside the home), one must apply for and obtain an additional license from the Chief of Police, whom the Code gives complete discretion to deny license applications. Heller does not claim a legal right to carry a handgun outside his home, so we need not consider the more difficult issue whether the District can ban the carrying of handguns in public, or in automobiles. It is sufficient for us to conclude that just as the District may not flatly ban the keeping of a handgun in the home, obviously it may not prevent it from being moved throughout one’s house. Such a restriction would negate the lawful use upon which the right was premised—i.e, self-defense.
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Heh, I stand corrected, fair enough....

Interpretations, I swear, too many laws can easily be interpreted totally different ways depenfding of the wording..... semantics.... MEH.
 
The following, excerpted from NRA Grass Roots Alert:

D.C. GUN BAN RULED UNCONSTITUTIONAL,
VIOLATES INDIVIDUAL RIGHT TO OWN A GUN
This week, the D.C. Circuit Court of Appeals ruled that the Second Amendment is an individual right and concluded that the District of Columbia's ban on guns in the home is unconstitutional. According to the majority opinion, "[T]he phrase 'the right of the people'...leads us to conclude that the right in question is individual." Also, earlier this week, Second Amendment supporters on Capitol Hill introduced H.R. 1399 -- the "District of Columbia Personal Protection Act."

Seen from other sources, SAF and Citizens Committee also. This ruling is, I suppose, subject to appeal. Let's hope that "the center holds", as that old saying goes.
 
Appellant Heller challenges this provision and a companion provision, § 22-4506, insofar as they appear to ban moving a handgun from room to room in one’s own house, even if one has lawfully registered the firearm (an interpretation the District does not dispute). In order to carry a pistol anywhere in the District (inside or outside the home), one must apply for and obtain an additional license from the Chief of Police, whom the Code gives complete discretion to deny license applications. Heller does not claim a legal right to carry a handgun outside his home, so we need not consider the more difficult issue whether the District can ban the carrying of handguns in public, or in automobiles. It is sufficient for us to conclude that just as the District may not flatly ban the keeping of a handgun in the home, obviously it may not prevent it from being moved throughout one’s house. Such a restriction would negate the lawful use upon which the right was premised—i.e, self-defense.
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So just how does one go about getting the handgun to their house in the first place? Wouldn't one need someone, such as a DC police officer, to move the firearm within commerce :barf: to one's house where it would then be surrendered to the homeowner once inside?
 
By the by ... did anyone else catch this?
Ernest McGill, pro se, was on the brief for amicus curiae
Ernest McGill in support of appellees.
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This is the clown who runs the "Potowmac Institute" from his apartment. He just never gives up, does he.
 
Although this decision is a victory, it could be reversed en banc or by SCOTUS. I fear that the best we can reasonably hope for from this case is that it is not reviewed or reversed en banc and is not heard by SCOTUS. That would result in gains for our brethren in DC, but the continuation of a fractured 2A landscape across the nation.
 
It would be upheld by any honest court that gave a fair reading to the D.C. circuit's opinion. That's not the same as saying it'd be upheld by the SCOTUS. Law follows ideology. If the majority of the court is uncomfortable with the idea of an individual RKBA, they'll manufacture a way to write it out of the constitution.
 
Playboypenguin said:
Didn't the people vote in these laws by a majority vote.
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Um... No. My understanding is that it was a law put in place by the D.C. government. (Think City Mayor and Council)

Even if I'm wrong and it was a law that was put in place by a popular vote, the Courts can still strike it for being unconstitutional. Popular vote does not override rights guaranteed by said constiutution.

That is not judicial activism, that is doing their job, per Art. III.

kiov said:
If one of you guys can understand legalspeak and will actually read the documents, it would be great if you could outline some of the relevant points.
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Here you go:

For the first time in our history, a Federal Appeals Court has actually struck down gun laws, as being unconstitutional, based solely upon Second Amendment grounds.

The 5th Circuit in Emerson, did not strike any laws. It merely held the right to be individual, but subject to reasonable restrictions. It did not hold that the right was a primary right to be held to strict scrutiny. As such, the Lautenberg amendment (Title 18 922(g)(9)) was held as a reasonable restriction (and by reference, all gun laws). Emerson's conviction was sustained.

The 5th Circuit's decision was that the 2nd was an individual right, but a right that had no teeth.

Here, the D.C. Circuit provided not just teeth, but fangs!

Two laws were struck down: 1) It is no longer necessary to register a handgun for use strictly within your home nor is it a crime to move the firearm from room to room within the home (D.C. Code 22-4504) and 2) keep it in a disassembled (unusable) state (D.C. Code 7-2507.02).

Further, the D.C. Circuit held that the 2A right is an individual right and that the implements of the right may not be outright banned. That the firearms do not have to have a direct relationship to the Militia (e.g. Miller), but may be any firearm in use today.

D.C. Mayor Fenty has said that they will appeal. That leaves only two avenues open. They can appeal to the entire Circuit (en banc), a course that is not always wise, as en banc appeals are rarely given or they can appeal directly to the Supreme Court (yes, the City can appeal to the SCOTUS if they lose the en banc appeal). Fenty has also said that, "We intend to do everything in our power to work to get this decision overturned, and in the meantime, we will vigorously enforce our handgun law." That last had to be in reference to the general handgun registration law that was not struck down. If it was in reference to the stricken laws, he may need to have a conversation with his D.A.

D.C. will, of course, ask for a stay in execution of the Circuits ruling while the appeal is still pending. Do not assume that this stay will be automatically granted. It's a coin toss, either way.

As of this moment, two of D.C.'s gun laws have been struck... And by inference, any other laws banning the use of firearms for personal defense in other federal enclaves (military housing may not be affected as they fall under military jurisdiction and would have to be adjudicated there first).

GoSlash27 said:
Does anybody have a feel for the current makeup of the SC in regards to the 2nd Amdt?
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I believe that under the current makeup of the court, it would be 4 against and 4 for, with Kennedy the prevailing (and pivotal) vote.

As a final of note, there are the political ramifications. This ruling (and any appeals) will play heavily in the 2008 presidential and congressional races.
 
As of this moment, two of D.C.'s gun laws have been struck... And by inference, any other laws banning the use of firearms for personal defense in other federal enclaves
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Interesting inference. National Parks?
 
Further, the D.C. Circuit held that the 2A right is an individual right and that the implements of the right may not be outright banned.
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So Al, is it time for a thread on what that means?:)

WildsowhatisinfringeandwhatisnotAlaska
 
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