March 9, 2007

D.C. Circus Overturns D.C. Gun Ban - UPDATED

Hatched by Dafydd

UPDATE: See below.

A three-judge panel of the D.C. Circuit Court of Appeals has just overturned the longstanding (since 1976) ban on private gun ownership in the District of Columbia, and has also overturned the requirement that even those guns allowed must be kept in a partially disassembled condition locked in a safe.

The ruling was 2-1; the majority opinion appears to have been written by Reagan-appointee (1985) Judge Laurence Hirsch Silberman; the dissenting vote was by Karen LeCraft Henderson, a Reagan-appointee as a district judge, 1986, and a George Herbert Walker Bush-appointee to the circuit court in 1990.

UPDATE: The third judge is Thomas Beall Griffith, appointed by George W. Bush and confirmed by the Senate in 2005; and the opinion is here (hat tip to Blake Dvorak on Real Clear Politics).

The Associated Press characterizes the majority and dissenting opinions thus:

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 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.

That last argument -- if that's really what she said -- is preposterous, since that would open the floodgates to deny incorporation within D.C. of a host of other rights guaranteed by the first ten amendments to the Constitution... including freedom of speech, freeedom of religion, the right to be free of unreasonable searches and seizures, and so forth. I can't imagine the Court taking that tack; but I can very much imagine AP mischaracterizing the core of Judge Henderson's dissent: She might have written something much more intelligent.

The New York Times truculently complains about this decision, as --

Most federal appeals courts have said that the amendment, read as a whole [by which they mean only reading the subordinate, dependent clause -- the Mgt.], protects only a collective right of the states to maintain militias -- in modern terms, the National Guard. But in yesterday’s decision, the majority focused on the second clause [that would be the actual subject-verb-predicate of the sentence -- the Mgt.], saying that the amendment broadly protects the rights of individuals to own guns -- an approach that has been embraced by the Justice Department and by some constitutional scholars ["some" meaning in this case "virtually all" -- the Mgt.].

It may be true that "most federal appeals courts" think the Second Amendment protects the rights only of members of the National Guard; but if so, that's because most federal appeals courts have racked up a dismal record comprehending the only Supreme Court case to address the issue: U.S. v. Miller, 307 U.S. 174 (1939).

In Miller, the Court held that the Second Amendment's purpose was to ensure that we would always have a ready supply of trained and armed citizens to be called up as the militia. They ruled, therefore, that the amendment only applied to the kind of weapons ordinarily in use by individual soldiers in armies and militias.

Jack Miller, suspected of robbing banks, was arrested under the National Firearms Act of 1934 for transporting a short-barrelled (or sawed-off) shotgun across state lines without having purchased a special stamp from the government. He defended himself on Second Amendment grounds and usurpation of state police powers, claiming the NFA was unconstitutional; the judge agreed and struck down the law.

The United States attorney appealed to the Supreme Court, which reversed and remanded the case back to the district court for further proceedings (which never took place). The Court issued three substantive holdings:

  • That the Act was a federal revenue act, therefore within the jurisdiction of Congress;
  • That the Second Amendment only protected the keeping and bearing of military-style weapons;
  • And that short-barrelled shotguns did not qualify.

(The prosecution actually argued that Miller did not qualify for Second Amendment protection because he was not a member of any organized militia, but the Court considered and rejected this argument. Instead, they wrote a lengthy analysis showing that "the militia" consisted of all military-aged men -- which refutes the misunderstanding that Miller restricted gun rights to members of the National Guard.)

The finding about short-barrelled shotguns was simply wrong; such guns are widely in use in military units today (including ours) and have been since long before Miller. Alas, Miller failed to show up at his Supreme Court hearing, having inconviently been murdered in prison; his attorneys also failed to show up, their case being moot. (The co-defendant, Frank Layton, also didn't show up; but I'm not sure why.)

Thus, no defense argument was made. Had there been one, they could easily have demonstrated that both machine guns and short-barrelled shotguns were in widespread military use, and (one presumes) the district-court decision would have been upheld.

Since then, appellate court after appellate court has wrongly -- and I believe deliberately and with malice aforethought -- misinterpreted Miller as having claimed that only the gun rights of members of the militia were protected... and also that "the militia" consists of the National Guard.

If today's Court holds to the precedent of Miller, they must rule that the right to possess a pistol, which is certainly part of the ordinary accoutrements of ordinary soldiers in modern armies and militias, is undeniably protected by the Second Amendment; and that this right inheres in all individual persons, not just those in the National Guard.

The Court must reach the same conclusion textually if they examine the very words: the phrase "the right of the people" is never used in any other part of the Constitution to mean "the right of the states," but always as an individual right enjoyed by each individual person, subject to reasonable restrictions (for example, you can prevent convicted felons and the dangerously insane from possessing guns, just as you can restrict their liberties in other ways).

But if the Court holds that the D.C. law is unconstutional, it would also mean that the decades-long federal prohibition against possession of sawed-off shotguns and of machine guns is likewise unconstitutional. I will listen eagerly for the weeping and the wailing and the gnashing of liberal teeth if the Court is bold enough to carry this decision to its logical end.

In fact, the same decision should also toss out all state or federal laws prohibiting concealed carry, except in extraordinary circumstances, such as in a court room or other governmental building. Concealed carry is much less disruptive to civil life, and I prefer it.

This is a very good case to finally have it out in the Supreme Court; and this is a very good Court to resolve such a case. I don't know how Justice Sandra Day O'Connor ruled on gun-rights cases, but I wouldn't be surprised if Justice Samuel Alito were more open to the constitutional argument. Justice Antonin Scalia may not like people owning or carrying guns; I have no idea. But he certainly believes in following the actual words of the Constitution; same with Justices Clarence Thomas, Alito, and Chief Justice John Roberts.

I'm pretty sure that the usual suspects would vote to overturn the D.C. Circuit: Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer, and David Souter. As usual, the swing vote would be Justice Anthony Kennedy. (Power Line and Patterico know much more about such matters than I; I hope they will comment.)

There is no reason that "reasonable restrictions" could not include demonstrated proficiency with whatever general class of weapon you possess (not of each and every possible model within the broad category; that would be quite unreasonable). Thus, a person should be able to "qualify" with a pistol, a rifle, or even a select-fire weapon capable of firing continuous rounds with a single trigger-pull (a machine gun). Thereafter, the qualifying person could not be prosecuted simply for possessing or carrying such a weapon -- though carrying a gun openly could still be prohibited as "brandishing" or "threatening."

But I long to see a final resolution of this long-term legal controversy. More than anything else, the right to keep and bear arms is a hallmark of a free people... and I want to know whether we Americans are still free.

Hatched by Dafydd on this day, March 9, 2007, at the time of 6:09 PM

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Tracked on March 10, 2007 12:20 PM


The following hissed in response by: jd watson

"The strongest reason for people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government." --Thomas Jefferson

"Americans have the right and advantage of being armed -- unlike the citizens of other countries whose governments are afraid to trust the people with arms." -- James Madison

"The best we can hope for concerning the people at large is that they be properly armed." -- Alexander Hamilton

"Among other evils which being unarmed brings you, it causes you to be despised." -- Niccolo Machiavelli

The above hissed in response by: jd watson [TypeKey Profile Page] at March 9, 2007 8:06 PM

The following hissed in response by: Navyvet

"The Constitution of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed and that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of press." -- Thomas Jefferson (emphasis added)

Seems pretty all-inclusive to me. And I note that Jefferson considered bearing arms a duty, one to be exercised at all times.

Of interest, the Commonwealth of Virginia licenses individuals for concealed carry, but state law also permits open carry without any license whatsoever. Each citizen has the right to be armed in his own defense.

While not a founding father, I believe it was Robert A. Heinlein who said: "An armed society is a polite society." Not only is that an astute is also true.

The above hissed in response by: Navyvet [TypeKey Profile Page] at March 9, 2007 8:47 PM

The following hissed in response by: charlotte

Good overview, Dafydd, and good news. To a citizenry that's been under judicial siege for too long wrt the Second Amendment, this decision is a “shot in the arm,” if the SC doesn't end up shooting it down in favor of collective rights theory. But it’s still a good excuse to celebrate on the range this weekend, to include firing a WWII Colt .45 just bequeathed me. Am thinking the recoil couldn't be any worse than the liberal backlash to today’s ruling...

The above hissed in response by: charlotte [TypeKey Profile Page] at March 9, 2007 8:53 PM

The following hissed in response by: Bill Faith

Excellent analysis Dafydd. I linked from Court rules 2nd Amendment valid.

The above hissed in response by: Bill Faith [TypeKey Profile Page] at March 10, 2007 1:36 AM

The following hissed in response by: Rovin

The Second Amendment, as passed by the House and Senate and later ratified by the States, reads:

“ 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. ”

I have aways contended,(and argued vigorously), that the most critical part about the second amendment is the "comma" between the "free state" and "the right of" which meant that the framers were implying two seperate inferences---one being the "militia" and the other being "the people".

And that both had the Right to keep and bear arms.

Am thinking the recoil couldn't be any worse than the liberal backlash to today’s ruling...

That is just too funny Charlotte....good shooting

The above hissed in response by: Rovin [TypeKey Profile Page] at March 10, 2007 8:03 AM

The following hissed in response by: Dana Pico

Navyvet wrote:

While not a founding father, I believe it was Robert A. Heinlein who said: "An armed society is a polite society." Not only is that an astute is also true.

I believe that Robert E Howard put it better:

Civilized men are more discourteous than savages because they know they can be impolite without having their skulls split, as a general thing.

The above hissed in response by: Dana Pico [TypeKey Profile Page] at March 10, 2007 2:06 PM

The following hissed in response by: Dana Pico

To plug a friend's blog (rather than my own, which is certainly unusual), Sharon noted the interesting fact that Judge Silberman cited Dred Scott v Sanford as one of his precedents.

Wonder how frequently Dred Scott gets cited these days.

The above hissed in response by: Dana Pico [TypeKey Profile Page] at March 10, 2007 2:10 PM

The following hissed in response by: charlotte

Thanks, Rovin :)

The above hissed in response by: charlotte [TypeKey Profile Page] at March 11, 2007 6:14 AM

The following hissed in response by: Diffus

Do penumbrae emanate from the Second Amendment as they do the first? I'm thinking about upgrading the H&K to an M1A1, or maybe even an F-22.

The above hissed in response by: Diffus [TypeKey Profile Page] at March 12, 2007 9:18 AM

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