http://article.nationalreview.com/?q=MzVlYTU4NmFmMzI3MDkxMzg0MjUwZDVmY2YxM2I5YmU=
Should the link quit working, it did in a couple of cases, text follows.
Rearming
The D.C. gun ban gets overruled.
By Symposium
A D.C. circuit court threw out the District of Columbia’s three-decades-old gun ban on Friday. In the wake of the Parker v. District of Columbia ruling, National Review Online asked a group of Second Amendment experts to assess its legal and political significance.
Randy Barnett
When discussing with my wife the Supreme Court justices’ possible reaction to the Parker case, she observed that “it would be really exciting if they followed the Constitution.” Indeed! But I predict they won’t hear the case. True, the federal circuits now disagree about the original meaning of the Second Amendment. But there is no “circuit split” on the constitutionality of either the D.C. statute or a comparable federal statute banning all hand guns. The constitutionality of state statutes, such as have been upheld in other circuits, is complicated by the need to apply the Fourteenth Amendment, so those precedents are legally distinct. Further, because Solicitor General Paul Clement may well agree with the majority’s interpretation of the Second Amendment, as does the current Justice Department, he may oppose granting Cert. Given that even liberal justices have long ducked this issue in the past, it would be very risky for them to take it up now that the Court is more conservative, textualist, and originalist. Of course, the case could be reversed en banc by the D.C. Circuit, but again I doubt it. Unlike the protection of an unenumerated right that makes judicial conservatives nervous — like the right to life at issue in Abigail Alliance — the proposition that the Second Amendment protects an enumerated individual right applicable to the federal government unites originalist-inclined judges, whether conservative or libertarian. Moreover, that Judge Silberman is highly respected, his opinion is powerfully reasoned, and the dissenting opinion is astonishingly weak, all argue against an en banc review. But wouldn’t it be exciting if . . . ?
— Randy E. Barnett is Carmack Waterhouse Professor of Legal Theory at Georgetown University Law Center.
John C. Eastman
For the better part of a century, the Second Amendment has been the poor stepchild of the Bill of Rights, almost as infrequently litigated as the Third Amendment’s prohibition on the quartering of troops. And the rights revolution that took hold in the 1960s, finding rights to all sorts of things not explicit in the Constitution, completely ignored the Second Amendment’s explicit right to keep and bear arms.
Last Friday, that changed. The D.C. Circuit, in an opinion written by Judge Silberman, held that the Second Amendment actually protects a personal right to keep firearms in one’s home for purposes of self defense. Almost every federal circuit court of appeals has now weighed in on the subject, so it is hard to imagine how the split of opinion that has now developed is not finally headed to the Supreme Court.
Judge Silberman knows that, of course, so his opinion is a masterful treatise on the subject. More than just a provision of the Bill of Rights, Judge Silberman rightly recognizes that the Second Amendment, like its sister amendments, does not confer a right but rather recognizes a natural right inherent in our humanity. In this, he is following no less an authority than the Declaration of Independence, which recognizes the “right of the people” to alter or abolish their government whenever it becomes destructive of the ends for which it was legitimately organized, namely, the securing of unalienable rights. So the Second Amendment protects not just self-defense, but also the right to throw off tyranny, if that becomes necessary. Mr. Jefferson will now join Mr. Madison on this trip to the Supreme Court—let’s hope the distinguished justices hear them well.
— John C. Eastman is interim associate dean of administration and Henry Salvatori Professor of Law & Community Service at Chapman University’s School of Law and director of the Claremont Institute’s Center for Constitutional Jurisprudence.
Cam Edwards
Wayne LaPierre, the executive vice president of the National Rifle Association, called the ruling “a crack in the door for residents in the District of Columbia to join the rest of the country in enjoying full constitutional freedom.” I think that’s an accurate statement. The District plans on appealing this ruling, so it’s too early to declare the return of the 2nd Amendment to Washington, D.C., but it is a major step forward.
From a political standpoint, Friday’s ruling may have an impact on legislation in the Senate. I think many people around the country were unaware of how draconian D.C.’s gun ban really is until they heard of the decision last week. It’s likely that we’ll soon see the introduction of a bill in the Senate to repeal the District’s gun prohibition, and the increased awareness of the gun laws in D.C. could make this a high-priority, high-visibility piece of legislation for months to come.
— Cam Edwards is host of Cam and Company on NRAnews.com.
see continuation
Should the link quit working, it did in a couple of cases, text follows.
Rearming
The D.C. gun ban gets overruled.
By Symposium
A D.C. circuit court threw out the District of Columbia’s three-decades-old gun ban on Friday. In the wake of the Parker v. District of Columbia ruling, National Review Online asked a group of Second Amendment experts to assess its legal and political significance.
Randy Barnett
When discussing with my wife the Supreme Court justices’ possible reaction to the Parker case, she observed that “it would be really exciting if they followed the Constitution.” Indeed! But I predict they won’t hear the case. True, the federal circuits now disagree about the original meaning of the Second Amendment. But there is no “circuit split” on the constitutionality of either the D.C. statute or a comparable federal statute banning all hand guns. The constitutionality of state statutes, such as have been upheld in other circuits, is complicated by the need to apply the Fourteenth Amendment, so those precedents are legally distinct. Further, because Solicitor General Paul Clement may well agree with the majority’s interpretation of the Second Amendment, as does the current Justice Department, he may oppose granting Cert. Given that even liberal justices have long ducked this issue in the past, it would be very risky for them to take it up now that the Court is more conservative, textualist, and originalist. Of course, the case could be reversed en banc by the D.C. Circuit, but again I doubt it. Unlike the protection of an unenumerated right that makes judicial conservatives nervous — like the right to life at issue in Abigail Alliance — the proposition that the Second Amendment protects an enumerated individual right applicable to the federal government unites originalist-inclined judges, whether conservative or libertarian. Moreover, that Judge Silberman is highly respected, his opinion is powerfully reasoned, and the dissenting opinion is astonishingly weak, all argue against an en banc review. But wouldn’t it be exciting if . . . ?
— Randy E. Barnett is Carmack Waterhouse Professor of Legal Theory at Georgetown University Law Center.
John C. Eastman
For the better part of a century, the Second Amendment has been the poor stepchild of the Bill of Rights, almost as infrequently litigated as the Third Amendment’s prohibition on the quartering of troops. And the rights revolution that took hold in the 1960s, finding rights to all sorts of things not explicit in the Constitution, completely ignored the Second Amendment’s explicit right to keep and bear arms.
Last Friday, that changed. The D.C. Circuit, in an opinion written by Judge Silberman, held that the Second Amendment actually protects a personal right to keep firearms in one’s home for purposes of self defense. Almost every federal circuit court of appeals has now weighed in on the subject, so it is hard to imagine how the split of opinion that has now developed is not finally headed to the Supreme Court.
Judge Silberman knows that, of course, so his opinion is a masterful treatise on the subject. More than just a provision of the Bill of Rights, Judge Silberman rightly recognizes that the Second Amendment, like its sister amendments, does not confer a right but rather recognizes a natural right inherent in our humanity. In this, he is following no less an authority than the Declaration of Independence, which recognizes the “right of the people” to alter or abolish their government whenever it becomes destructive of the ends for which it was legitimately organized, namely, the securing of unalienable rights. So the Second Amendment protects not just self-defense, but also the right to throw off tyranny, if that becomes necessary. Mr. Jefferson will now join Mr. Madison on this trip to the Supreme Court—let’s hope the distinguished justices hear them well.
— John C. Eastman is interim associate dean of administration and Henry Salvatori Professor of Law & Community Service at Chapman University’s School of Law and director of the Claremont Institute’s Center for Constitutional Jurisprudence.
Cam Edwards
Wayne LaPierre, the executive vice president of the National Rifle Association, called the ruling “a crack in the door for residents in the District of Columbia to join the rest of the country in enjoying full constitutional freedom.” I think that’s an accurate statement. The District plans on appealing this ruling, so it’s too early to declare the return of the 2nd Amendment to Washington, D.C., but it is a major step forward.
From a political standpoint, Friday’s ruling may have an impact on legislation in the Senate. I think many people around the country were unaware of how draconian D.C.’s gun ban really is until they heard of the decision last week. It’s likely that we’ll soon see the introduction of a bill in the Senate to repeal the District’s gun prohibition, and the increased awareness of the gun laws in D.C. could make this a high-priority, high-visibility piece of legislation for months to come.
— Cam Edwards is host of Cam and Company on NRAnews.com.
see continuation
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