SILBERMAN, Senior Circuit Judge: Appellants contest the district court’s dismissal of their complaint alleging that the District of Columbia’s gun control laws violate their Second Amendment rights. The court held that the Second 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”) does not bestow any rights on individuals except, perhaps, when an individual serves in an organized militia such as today’s National Guard. We reverse.Particularly gratifying to see because of some of the attacks some of us have been subjected to:
We note that the Ninth Circuit has recently dealt with a Second Amendment claim by first extensively analyzing that provision, determining that it does not provide an individual right, and then, and only then, concluding that the plaintiff lacked standing to challenge a California statute restricting the possession, use, and transfer of assault weapons. See Silveira v. Lockyer, 312 F.3d 1052, 1066-67 & n.18 (9th Cir. 2003). We think such an approach is doctrinally quite unsound.
MORE:
A guy in comments at Say Uncle points out additionally a further element od the reading, "... just as the First Amendment free speech clause covers modern communication devices unknown to the founding generation, e.g., radio and television, and the Fourth Amendment protects telephonic conversation from a "search," the Second Amendment protects the possession of the modern-day equivalents of the colonial pistol."
ReplyDeleteI have a smile on my face that won't go away!
ReplyDeleteI'm popping a bottle of champagne tonight!
GREAT NEWS! Better late than never, let's hope it stands the onslaught we all know is coming....
Let's hope that there's a rush of gun sales in the DC area as residents exercise their RIGHT to keep and bear arms.
ReplyDeleteMore gun owners on the way- happy days!
If you posted this on April 1st, I would never have believed it. Wow - the Constitution means what it says! Imagine that.
ReplyDeleteCan anyone with more of the applicable knowledge than I have (which would be just about all of you, I imagine) tell me if this will have any directly beneficial effect for Wayne Fincher?
ReplyDeleteI'm not sure that it would. One can hope, but I think they'd make the animal farm argument..."all guns bad, some guns more bad"
ReplyDeleteI find myself smiling and giggling like that antis do when some madman makes the news as well. We'll see what shakes out, but so far so good.
Now, to go read the legalese.
Here are some pertinent quotes from the ruling; "We Reverse"
ReplyDeleteMore will be added as the document is studied.
This will go all the way to the Supreme Court, who will duck and dodge, and not really answer the issue, or I fear, will rule against us all the way. They are, after all, 5 to 4 liberal activists.
ReplyDeleteI hate to say it but I'm a pessimist when it comes to court decisions that favor our side. It seems like they give us just a taste of our GOD given freedoms to keep the rabble quiet, while they regroup for a more strategic assault. We can only hope that shred of "common sense" will prevail. Don't mean to rain on anyone's parade but we must remain forever vigilant! MOLON LABE!
ReplyDeleteJeff in Wisconsin
Remember the SCOTUS has not heard a case dealing directly with the 2nd Amendment since 1939.
ReplyDeleteThis ruling today puts the SCOTUS in the position whereby they may have to hear just such a case. And based on the ruling it is a beauty for our side.
The 75 page ruling is very well structured to withstand assault.
I believe this is a historic moment.
45superman--I wouldn't look for any direct effect just yet on Fincher. If this is upheld by SCOTUS, there may be an argument in terms of being able to argue 2A. Even so, as I told you via private email, and as I've said before on this blog about a SCOTUS 2A ruling in our favor:
ReplyDeleteIf the Supremes uphold it, it will be significant, but the door will still be open for "reasonable restrictions" based on "compelling state interest", meaning state "assault weapon" bans will probably be upheld, as will gun free school zones, permits to carry, Lautenberg, etc., so much of the "practical" day to day gun control will still be around.
David, if that's the case, essentially they'd be saying congress CAN make a law which wouldn't really be a victory, but a defeat.
ReplyDeleteAs for the state assault weapon bans...how would this figure into it?
Presser v. Illinois, 116 U.S. 252 (1886), one sees that "It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think [116 U.S. 252, 266] it clear that the sections under consideration do not have this effect."
I understand that's back to the Miller argument of any specific weapon being suitable for militia use. To get to the bottom of it the court's got to start taking cases.
Also, am I the only one that has been getting a strange vibe lately? Like the courts are saying we were wrong just in time to spark off something so they can crack down even further? Almost like giving hitler a can of gas, matches and dropping him off at the reichstag.
Yes, HH, that is precisely the case, e.g., John Ashcroft's famous opinion--one would think there really was that "sea change" everyone was buzzing about, but for this footnote:
ReplyDeleteOf course, the individual rights view of the Second Amendment does not prohibit Congress from enacting laws restricting firearms ownership for compelling state interests, such as prohibiting firearms ownership by convicted felons, just as the First Amendment does not prohibit shouting “fire” in a crowded movie theater...
You can read a lot into that. I choose to read administration apologist and Constitutional law professor Hugh Hewitt's speculation, that he stated on his radio program, that 2A would be subject to intermediate, rather than strict scrutiny. That leaves the door open for a whole lot of...let's see, what is the government expressly forbidden to make?...infringements.
And incidentally: You CAN yell "Fire!" in a crowded theater.