Appeals court overturns D.C. gun ban
By BRETT ZONGKER, Associated Press Writer
1 hour, 9 minutes ago
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."
The court also ruled the D.C. requirement that registered firearms be kept unloaded, disassembled and under trigger lock was unconstitutional.
In 2004, a lower-court judge had told six city residents that 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 district's definition of the militia is just too narrow," Judge Laurence Silberman wrote for the majority Friday. "There are too many instances of 'bear arms' indicating private use to conclude that the drafters intended only a military sense."
Judge Karen Henderson dissented, writing that the Second Amendment does not apply to the District of Columbia because it is not a state.
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.
Even as the appeals court overturned the D.C. ban on most handgun ownership, Silberman wrote that the Second Amendment is still "subject to the same sort of reasonable restrictions that have been recognized as limiting, for instance, the First Amendment."
Such restrictions might include gun registration to provide the government with information about how many people would be armed if militia service was required, firearms testing to promote public safety or restrictions on gun ownership for criminals or those deemed mentally ill.
A spokeswoman for the district attorney general's office would not comment on the ruling.
http://news.yahoo.com/s/ap/20070309/ap_on_...WkS0pK3ypqs0NUE
Full Version: Appeals court overturns D.C. gun ban
Common Ground Common Sense > Issues that Affect Our Lives > Second Amendment, Gun Safety and Gun Control
For those brave enough to read it, this is a PDF of the actual ruling.
Court of Appeals ruling
This is huge, people. If the Supremes indeed hear the appeal, it could finally settle the issue of "individual right" vs. "collective right".
A telling snippet from the decision...
Court of Appeals ruling
This is huge, people. If the Supremes indeed hear the appeal, it could finally settle the issue of "individual right" vs. "collective right".
A telling snippet from the decision...
"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."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
There is a good discussion on this ruling over at XD TALK.com. Worth the read, IMO.
QUOTE(Frenchy @ Mar 9 2007, 01:25 PM) 
There is a good discussion on this ruling over at XD TALK.com. Worth the read, IMO.
You are right, Frenchy, this is a watershed case. One of the contentious issues within state governments has been the issue of guns and militias. The Constitution is ambiguous in spite of its seeming clarity:
- 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.
If the Supreme Court interprets the former- a narrow perspective Constitutionally- then individuals do not have the right to bear arms unless they are part of a well regulated state militia.
If they interpret broadly- the right to bear arms as one in a series of individual and state rights- then the states cannot regulate any arms at all. Basically, the states would have a right to their own security without further comment, and the individuals would have the right to bear arms without comment, and neither could be infringed.
This is a very conservative court and may not want to open up the slippery slope of unabridged weapon ownership: tanks, military aircraft, cannon, etc. Under a broad interpretation, the government could not infringe upon the right of individuals to own such weapons. A conservative opinion would allow the state to continue to be the primary regulator of weapons.
At least, that's how it's been explained to me...
no wonder the crime rate is so outrageous there..... Its also the most liberal/democratic city in america
Frenchy:
We both know we would have been outlaws if we lived in D.C.
I'm being good, I limit my firearms to semi-auto rifles, shotguns and hand guns.
And Gerber ain't baby food here either, stands with uncle Buck and Bowie.
Hell, I've carried concealed firearms around D.C. several times. Oops.
We both know we would have been outlaws if we lived in D.C.
I'm being good, I limit my firearms to semi-auto rifles, shotguns and hand guns.
And Gerber ain't baby food here either, stands with uncle Buck and Bowie.
Hell, I've carried concealed firearms around D.C. several times. Oops.
QUOTE(Indianhead @ Mar 10 2007, 02:42 PM)
Hell, I've carried concealed firearms around D.C. several times. Oops.
Sshhh.
QUOTE(Indianhead @ Mar 10 2007, 11:42 AM)
Frenchy:
Hell, I've carried concealed firearms around D.C. several times. Oops.
Hell, I've carried concealed firearms around D.C. several times. Oops.
I dont blame u, with all the thugs in that city i dont blame you.
The DC Gun Ban
Ron Paul for Texas Straight Talk
03/12/07
Gun control historically serves as a gateway to tyranny. Tyrants from Hitler to Mao to Stalin have sought to disarm their own citizens, for the simple reason that unarmed people are easier to control. Our Founders, having just expelled the British army, knew that the right to bear arms serves as the guardian of every other right. This is the principle so often ignored by both sides in the gun control debate. Only armed citizens can resist tyrannical government...more
Ron Paul for Texas Straight Talk
03/12/07
Gun control historically serves as a gateway to tyranny. Tyrants from Hitler to Mao to Stalin have sought to disarm their own citizens, for the simple reason that unarmed people are easier to control. Our Founders, having just expelled the British army, knew that the right to bear arms serves as the guardian of every other right. This is the principle so often ignored by both sides in the gun control debate. Only armed citizens can resist tyrannical government...more
QUOTE(Frenchy @ Mar 12 2007, 12:20 PM)
The DC Gun Ban
Ron Paul for Texas Straight Talk
03/12/07
Gun control historically serves as a gateway to tyranny. Tyrants from Hitler to Mao to Stalin have sought to disarm their own citizens, for the simple reason that unarmed people are easier to control. Our Founders, having just expelled the British army, knew that the right to bear arms serves as the guardian of every other right. This is the principle so often ignored by both sides in the gun control debate. Only armed citizens can resist tyrannical government...more
Ron Paul for Texas Straight Talk
03/12/07
Gun control historically serves as a gateway to tyranny. Tyrants from Hitler to Mao to Stalin have sought to disarm their own citizens, for the simple reason that unarmed people are easier to control. Our Founders, having just expelled the British army, knew that the right to bear arms serves as the guardian of every other right. This is the principle so often ignored by both sides in the gun control debate. Only armed citizens can resist tyrannical government...more
i absoultely agree, i wish these anti gun liberals would get through their thick skulls.
I wonder if both sides of the issue would be a little leary about this being appealed up to the Supreme Court because once it's decided there, one side will win big and the other will lose big.
no need to appeal it to the S.C. This decision was correct, to overturn that stupid ban.
QUOTE(FellowDemocrat @ Mar 10 2007, 09:07 PM)
Sshhh.
QUOTE(wilson502 @ Mar 12 2007, 10:50 AM)
I dont blame u, with all the thugs in that city i dont blame you.
I carry almost everywhere...unless I'm drinkin'.
A habit that the United States of America instilled.
That, and an oath to step in, when someone weaker is
brutalized by someone stronger without reason.
It's the same approach I take with homosexual friends.
They don't victimize someone weaker, and no one gets
to brutalize them...at least, not on my watch (in my presence).
QUOTE
Ditch the Second Amendment.
Gun Shy
by Benjamin Wittes
Only at TNR Online
Post date: 03.19.07
The New York Times editorial page accused the appeals court panel that on March 9 struck down portions of Washington, D.C.'s ultra-strict gun-control law of storming "blithely past a longstanding Supreme Court precedent, the language of the Constitution and the pressing needs of public safety." My former colleagues at the Washington Post described the decision as a "radical ruling" that "will inevitably mean more people killed and wounded as keeping guns out of the city becomes harder."
It's not hard to see where the anger comes from. The two-to-one decision by the famously conservative Judge Laurence Silberman is, indeed, radical. Consider the following:
• The "central object" of the Second Amendment "is to arm 'We the People' so that ordinary citizens can participate in the collective defense of their community and their state. ... [T]he amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification. ... That assurance in turn is provided through recognizing a right ... on the part of individuals to possess and use firearms in defense of themselves and their homes."
• "For too long, most members of the legal academy have treated the Second Amendment as the equivalent of an embarrassing relative, whose mention brings a quick change of subject to other, more respectable, family members. That will no longer do. It is time for the Second Amendment to enter full scale into the consciousness of the legal academy."
• While at the Founding, the Second Amendment may have embodied a "collective" right, after the Civil War amendments, the constitutional landscape changed dramatically, and "gun-toting was individualistic, accentuating not group rights of the citizenry but self-regarding 'privileges' of discrete 'citizens' to individual self-protection."
Radical stuff, indeed. But there's a big problem with blasting Silberman for entertaining the notion that the people's right to "keep and bear arms" may actually include an individual right to, well, keep or bear a gun in the District of Columbia: None of these words actually come from his opinion. All, in fact, were written by esteemed liberal law professors.
The first is from Laurence Tribe's famed treatise on the Constitution, the latest version of which Tribe altered in recognition of the growing power of the individual-rights view of the amendment--a view he had long rejected. The second is by Sanford Levinson, who--before he stopped believing in the Constitution altogether--wrote an illuminating law review article called "the embarrassing second amendment." The final quotation is from Akhil Reed Amar's ambitious history, The Bill of Rights. One can still muster strong arguments in favor of a collective-rights conception of the Second Amendment, the view that has prevailed in most other circuits; and the individual-rights view does not necessarily doom all gun control (though it probably does doom the most sweeping bans). But the simple truth is that the individual-rights view is in intellectual ascendancy, and not just among gun-loving wing nuts. If Silberman is a radical with blithe disregard for public safety, he is in exceptionally strong company.
It's time for gun-control supporters to come to grips with the fact that the amendment actually means something in contemporary society. For which reason, I hereby advance a modest proposal: Let's repeal the damned thing.
This seems to me the right response to the amendment no matter which broad historical interpretation is correct. If, in fact, the amendment embodies only a collective right and the right to keep guns is indelibly linked to membership in the old militias--institutions that no longer exist--the amendment is already a dead letter. Repealing it would be then a simple matter of constitutional hygiene, the removal of a constitutional provision that has no function now nor could in the future but that, by its language, encourages the belief in an armed citizenry that I, for one, do not wish to see.
If, on the other hand, the amendment really does as Silberman, Tribe, Amar, and Levinson essentially claim--and I suspect they are all more right than wrong--then it embodies values in which I don't believe. I grew up obsessively shooting .22 caliber target rifles at summer camp in the Adirondacks. I like guns well enough in rural areas. I don't like them in cities. I don't believe that the Constitution ought to prevent my hometown of Washington, D.C.--which has a serious problem with gun violence--from making a profoundly different judgment about how available handguns should be than the New York legislature would make for the hamlet near my old camp. Guns, in other words, present a legitimate policy question on which different jurisdictions should take very different approaches--including, in some areas, outright bans.
There are lots of good reasons why our values today might not coincide with those of the Founders on the question of guns. The weapons available today, for one thing, are a far cry from muskets, which could never have yielded the kind of street violence America sees routinely now. On a more esoteric level, the Second Amendment's protection for militias reflected the importance the Founders attached to an armed citizenry as a protection against tyrannical government. This made sense at the time. The Founders had a lot of experience with oppressive rulers and little idea whether the constitutional order they were setting up would remain free; maybe they would need to overthrow it sometime. After more than two centuries of constitutional government, however, it's safe to assume that neither an armed citizenry nor a well-regulated militia really is "necessary to the security of a free State." The opposite seems closer to the truth; just ask the Bosnians or the Iraqis. And elections, it turns out, do the job pretty well. To put the matter simply, the Founders were wrong about the importance of guns to a free society.
But, critically, judges shouldn't be in charge of stripping disfavored rights from the Constitution. If the courts can simply make gun rights disappear, what happens when the First Amendment becomes embarrassing or inconvenient? It corrodes the very idea of a written Constitution when the document means, in practice, the opposite of what its text says. The great beauty of the Constitution is that, unlike, say, the treaties that form the European Union, you can actually read it. You can see how its language embodies principles that still animate the day-to-day operation of American political life. When that is no longer the case, American democracy suffers; it gets unmoored from its source of legitimacy.
If we disagree with the Founders--and as to guns, I very much disagree with whatever they might have meant--we should say so and invoke that provision of the Constitution they specifically designed so that we could give voice to our disagreements with them. The Bill of Rights is sacred, but it is not so sacred that we should prefer lying to ourselves about what it actually says, rather than changing it as our needs shift.
It's true that repealing the Second Amendment is politically impossible right now; that doesn't bother me. It should be hard to take away a fundamental right. But that doesn't make it less wrong to ask Silberman and his colleagues to relieve the political culture of the obligation of trying.
It is certainly easier to pretend that's not what we're doing--that the Founders never created the right, and that our values and theirs (except, of course, concerning slavery, women, Native Americans, and few other odds and ends) are more or less congruent. It's a lot easier to pretend that Silberman--but not, of course, Tribe, Amar, or Levinson--is a dangerous radical. But it's not healthy. We should seek gun control and a Constitution that means something.
Benjamin Wittes is a guest scholar at the Brookings Institution and is writing a book about the federal courts of appeals. He can be reached at benjamin.wittes@gmail.com.
Gun Shy
by Benjamin Wittes
Only at TNR Online
Post date: 03.19.07
The New York Times editorial page accused the appeals court panel that on March 9 struck down portions of Washington, D.C.'s ultra-strict gun-control law of storming "blithely past a longstanding Supreme Court precedent, the language of the Constitution and the pressing needs of public safety." My former colleagues at the Washington Post described the decision as a "radical ruling" that "will inevitably mean more people killed and wounded as keeping guns out of the city becomes harder."
It's not hard to see where the anger comes from. The two-to-one decision by the famously conservative Judge Laurence Silberman is, indeed, radical. Consider the following:
• The "central object" of the Second Amendment "is to arm 'We the People' so that ordinary citizens can participate in the collective defense of their community and their state. ... [T]he amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification. ... That assurance in turn is provided through recognizing a right ... on the part of individuals to possess and use firearms in defense of themselves and their homes."
• "For too long, most members of the legal academy have treated the Second Amendment as the equivalent of an embarrassing relative, whose mention brings a quick change of subject to other, more respectable, family members. That will no longer do. It is time for the Second Amendment to enter full scale into the consciousness of the legal academy."
• While at the Founding, the Second Amendment may have embodied a "collective" right, after the Civil War amendments, the constitutional landscape changed dramatically, and "gun-toting was individualistic, accentuating not group rights of the citizenry but self-regarding 'privileges' of discrete 'citizens' to individual self-protection."
Radical stuff, indeed. But there's a big problem with blasting Silberman for entertaining the notion that the people's right to "keep and bear arms" may actually include an individual right to, well, keep or bear a gun in the District of Columbia: None of these words actually come from his opinion. All, in fact, were written by esteemed liberal law professors.
The first is from Laurence Tribe's famed treatise on the Constitution, the latest version of which Tribe altered in recognition of the growing power of the individual-rights view of the amendment--a view he had long rejected. The second is by Sanford Levinson, who--before he stopped believing in the Constitution altogether--wrote an illuminating law review article called "the embarrassing second amendment." The final quotation is from Akhil Reed Amar's ambitious history, The Bill of Rights. One can still muster strong arguments in favor of a collective-rights conception of the Second Amendment, the view that has prevailed in most other circuits; and the individual-rights view does not necessarily doom all gun control (though it probably does doom the most sweeping bans). But the simple truth is that the individual-rights view is in intellectual ascendancy, and not just among gun-loving wing nuts. If Silberman is a radical with blithe disregard for public safety, he is in exceptionally strong company.
It's time for gun-control supporters to come to grips with the fact that the amendment actually means something in contemporary society. For which reason, I hereby advance a modest proposal: Let's repeal the damned thing.
This seems to me the right response to the amendment no matter which broad historical interpretation is correct. If, in fact, the amendment embodies only a collective right and the right to keep guns is indelibly linked to membership in the old militias--institutions that no longer exist--the amendment is already a dead letter. Repealing it would be then a simple matter of constitutional hygiene, the removal of a constitutional provision that has no function now nor could in the future but that, by its language, encourages the belief in an armed citizenry that I, for one, do not wish to see.
If, on the other hand, the amendment really does as Silberman, Tribe, Amar, and Levinson essentially claim--and I suspect they are all more right than wrong--then it embodies values in which I don't believe. I grew up obsessively shooting .22 caliber target rifles at summer camp in the Adirondacks. I like guns well enough in rural areas. I don't like them in cities. I don't believe that the Constitution ought to prevent my hometown of Washington, D.C.--which has a serious problem with gun violence--from making a profoundly different judgment about how available handguns should be than the New York legislature would make for the hamlet near my old camp. Guns, in other words, present a legitimate policy question on which different jurisdictions should take very different approaches--including, in some areas, outright bans.
There are lots of good reasons why our values today might not coincide with those of the Founders on the question of guns. The weapons available today, for one thing, are a far cry from muskets, which could never have yielded the kind of street violence America sees routinely now. On a more esoteric level, the Second Amendment's protection for militias reflected the importance the Founders attached to an armed citizenry as a protection against tyrannical government. This made sense at the time. The Founders had a lot of experience with oppressive rulers and little idea whether the constitutional order they were setting up would remain free; maybe they would need to overthrow it sometime. After more than two centuries of constitutional government, however, it's safe to assume that neither an armed citizenry nor a well-regulated militia really is "necessary to the security of a free State." The opposite seems closer to the truth; just ask the Bosnians or the Iraqis. And elections, it turns out, do the job pretty well. To put the matter simply, the Founders were wrong about the importance of guns to a free society.
But, critically, judges shouldn't be in charge of stripping disfavored rights from the Constitution. If the courts can simply make gun rights disappear, what happens when the First Amendment becomes embarrassing or inconvenient? It corrodes the very idea of a written Constitution when the document means, in practice, the opposite of what its text says. The great beauty of the Constitution is that, unlike, say, the treaties that form the European Union, you can actually read it. You can see how its language embodies principles that still animate the day-to-day operation of American political life. When that is no longer the case, American democracy suffers; it gets unmoored from its source of legitimacy.
If we disagree with the Founders--and as to guns, I very much disagree with whatever they might have meant--we should say so and invoke that provision of the Constitution they specifically designed so that we could give voice to our disagreements with them. The Bill of Rights is sacred, but it is not so sacred that we should prefer lying to ourselves about what it actually says, rather than changing it as our needs shift.
It's true that repealing the Second Amendment is politically impossible right now; that doesn't bother me. It should be hard to take away a fundamental right. But that doesn't make it less wrong to ask Silberman and his colleagues to relieve the political culture of the obligation of trying.
It is certainly easier to pretend that's not what we're doing--that the Founders never created the right, and that our values and theirs (except, of course, concerning slavery, women, Native Americans, and few other odds and ends) are more or less congruent. It's a lot easier to pretend that Silberman--but not, of course, Tribe, Amar, or Levinson--is a dangerous radical. But it's not healthy. We should seek gun control and a Constitution that means something.
Benjamin Wittes is a guest scholar at the Brookings Institution and is writing a book about the federal courts of appeals. He can be reached at benjamin.wittes@gmail.com.
http://www.tnr.com/doc.mhtml?i=w070319&s=wittes031907
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