DC CIRCUIT COURT STRIKES DOWN GUN LAW ON 2A GROUNDS

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I have often been tempted to ask here on this forum how many THRers think that the Second Amendment permits absolutely no restrictions whatsoever on RKBA, and that we should accept nothing less, but I have not had the courage to do so.

It's been asked more than once and the number is surprisingly large.

Even the most extreme are usually nuanced enough to differentiate between restrictions on possession/carriage and restrictions on actual criminal use.

Most of the "not quite that extreme", will look at the rest of the BOR for examples of "reasonable restrictions", which again are focused more on misuse, typically criminal in nature ("yelling fire in a crowded theatre" being the trope). In such cases the non-aggression principle shines.
 
Sen. Frank Lautenberg, a Democrat from New Jersey, criticized the ruling.

"On the same day a new report demonstrated a sharp rise in violent crime, a federal court handed down a decision that could pour even more guns onto the streets of our nation's capital..."

:rolleyes: :rolleyes: :rolleyes: :banghead:

Where have I heard that phrase before? Maybe I'll visit the DC streets with a 5 gallon bucket.

.
 
Titan6,

'Portion #1 - Whenever the militia is mentioned it is in military terms, and the insistence that ones rights to arms outside of a connection to "the militia" seems tortured and tenuous. In contrast, the parts of the ruling referencing "the people" and "a free State" are abundantly clear and solidly historically supported. I say "tortured and tenuous" because I don't think that this portion of the ruling has anywhere near the dissuasive power of the others.

For instance, "We quite agree that the militia was a collective body designed to act in concert".'


--- Okay maybe I am reading you wrong. First you say that the RKBA as an individual is put forth as an individual right is abundantly clear and solidly supported than you say it is not dissuasive.

Which is it? You do realize that 'The People' refer to an individual right and not an imaginary collective right? Or the right of a state or militia group? This is very clear in the brief. The state and the people are two completely separate entities.

"...RKBA as an individual is put forth..."???

If you will rephrase your questions so it is clear what you are asking, I will be more than pleased to respond.

From what I gather of your question (IF I'm reading it correctly), it doesn't seem like you have carefully read what I wrote.


BB62
 
That is what I am asking. What is your question? I don't understand it. Please explain.

Are you saying the ruling is not strong enough to support the RKBA as an individual right outside of a militia?
 
No such thing as a "reasonable restriction"

I have often been tempted to ask here on this forum how many THRers think that the Second Amendment permits absolutely no restrictions whatsoever on RKBA, and that we should accept nothing less, but I have not had the courage to do so.

There is no authority granted to the Federal Government to infringe on any persons right to keep and bear arms... so a strict adhearance to the Constitution would disallow all Federal arms regulations... strike them from the books.

Now there are some that argue that States do have the authority to regulate... I do not agree with that viewpoint... as a citizen of the United States I believe that I am protected from all infringement... both Federal and State... by the 2nd ammendment.

arms=any and all arms... machine guns... RPG's... mortars... etc. anything a modern infantry soldier would operate.

people=all people, including X-criminals... if they are out of jail they must have the same rights as anyone else... if they are too dangerous to be out, don't release them.
 
Carebear says,
It's been asked more than once and the number is surprisingly large.
Actually I have really enjoyed this thread, since it has compelled many THRers to get a little bit away from writing bumper stickers and discussing the real world, like the Parker decision. I was afraid the thread was dying off, and I wanted to see if I could jumpstart it. :)

Jim

PS I just noticed with envy where you are, Carebear. I spent several marvelous years in Alaska. Those tours were what really got me started on the firearms hobby. While my military and civilian careers both took me all over the country and literally all over the world, Alaska was the only place I have ever been where I could walk into a bank with my wife openly carrying her locked and loaded Ruger .44 mag carbine and her S&W m.19 loaded with .357 mag, both of which at my insistence she always carried when hiking, which I am sure you will appreciate, without getting any raised eyebrows. She was, BTW, expert with both, ditto with the M1911 and Springfield '03 I openly carried on our hikes. In the bank, even armed as she was, she could fill out a counter check, just writing down the name of her bank and her account number on the check, and cash it with no problems. That was almost 50 years ago. Is it still like that up there in God's country? (Please don't tell another Texican that I said that). :)

My wife is quite the gal, BTW, Carebear. She grew up in Alaska. She holds her Texas CHL, intending to take the range exam with her .38 purse-revolver, but her instructor talked her into using his Glock 9mm, since here in Texas her license would otherwise not have been good for a semiauto. He lent her his 9mm Glock, with which she was completely unfamiliar. (9 mm service handguns! -- another subject seen here and there on THR :fire: ).

Her familiarity with my M1911 resulted in the little woman receiving a standing ovation from all the men who were firing alongside her. I was indeed proud of her. She is no young chicken, but she is still a cute chick.

But, forgive me, I digress from Parker. I am an old man who sometimes lives largely in the past. My experiences in Alaska, however, greatly colored the position I have often been traumatized for here on THR. That is, I experienced first hand the almost complete absence of laws concerning firearms, or at least the absence of enforcement if, unknown to me, there were firearms laws. The citizenry responded by demonstrating that they would both act, and talk, reasonably, and we had a happy life -- we and our many firearms.

No more sea stories -- I promise.
 
Coat4Gun answers my question.
There is no authority granted to the Federal Government to infringe on any persons right to keep and bear arms... so a strict adhearance to the Constitution would disallow all Federal arms regulations... strike them from the books.
Well -- that settles that.

Jim
 
...Are you saying the ruling is not strong enough to support the RKBA as an individual right outside of a militia?

That's a good part of it, for the reasons I have previously enumerated.

What is your question? I don't understand it. Please explain.


BB62
 
We're a bit more civilized in the big city than that nowadays, but guys like Cosmoline regularly tote rifles around town on bicycles and you (apparently, I haven't) can walk into a bank openly carrying with a decent likelihood of folks not absolutely freaking out. There are people who open carry in town in regular stores, I do it occasionally myself.

As anywhere rural, the smaller the town, the less likely they are to care what you are packing as long as it is in context. Business suit and slung rifle is a bit weird at first glance, not so much when you are in hipwaders.
 
Carebear responds,
As anywhere rural, the smaller the town, the less likely they are to care what you are packing as long as it is in context.
My story took place in the state capital, Carebear. Of course at that time it too was a small town. :)

Thanx for coming back,

Jim
 
Well, yeah, it's just Juneau. There's, what, a mile of developed land twixt shore and hills and then just trees and mountains for a thousand more?
 
Coat4Gun said

people=all people, including X-criminals... if they are out of jail they must have the same rights as anyone else... if they are too dangerous to be out, don't release them.

Agreed, to a degree.

How about a law paying ordinary citizens a bounty when they shoot and kill an ex-con committing a crime? That will be a net win since court costs are not cheap.

If not a bounty, how about a one time federal and state marginal tax rate reduction. :evil:
 
My good buddy Carebear says,
Now if "reasonable restrictions" doesn't work in the long run, repeal would be all they'd have left.
You may be right, Carebear, but perhaps not, depending on which way the winds blow in the next national elections. Take a look at Article III, Section 2 of the Constitution, where is said:

... the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

In the heyday of the neocon fundamentalists, before the election of 2006, the Republicans, when they had firm control over both houses of Congress, seriously threatened to take away the jurisdiction of the Supreme Court to hear appeals suggesting violations of the First Amendment having to do with an establishment of religion or the free exercise thereof. This avenue could arguably be much easier than amending or abolishing the Second Amendment by way of a constitutional amendment.

What is sauce for the goose is sauce for the gander. Again depending on the way the winds blow in the next national elections, the Republicans may have occasion to regret more than one thing they did, or considered doing, while enjoying the arrogance of unrestrained power.

Cheers up there, Carebear, from a Texas beach with the air conditioning running full blast. :)

Jim
 
"Reasonable restrictions" will be their mantra, same as it ever was, because even being an individual right still leaves a lot of opening for that tack.
The RKBA doesn't necessarily include ammunition. Own all the guns you want but the leftists will restrict ammo. Enact onerous registration requirements to purchase any. Tax it into oblivion. Make manufacturers prove their ammo is "safe." Something, anything to prevent the flood of blood that will ensue from allowing everyday citizens to own guns.:uhoh:
 
FlaXD said:
The RKBA doesn't necessarily include ammunition.

Once 2A is confirmed, in the courts, to be an individual right, legislating away ammo becomes unviable. A firearm is a club without ammunition, so unreasonably burdensome regulations on ammunition becomes a violation of the right to bear arms, since there can be no valid argument that the second ammendment does not include the ability to use a firearm in the way it is designed to be operated: expel a potentially lethal projectile.
 
Thank you Matt.

In essence, if you read the opinion, the Court said the same thing about DC's requirement that the weapon be disassembled or locked up. In practical effect that removes the utility of having the weapon for defense at all and thus those storage provisions were also overturned.

The Court is smart enough to recognize obvious attempts to counter the decision.
 
At the moment, I'm thinking DC won't appeal.

Parker (actually Heller at this point, as Parker didn't have standing) was a comprehensive ruling achieving a rather modest goal: allowing licensed possession of mundane firearms, unlocked, in one's home.

If DC appeals, they will likely lose. While SCOTUS may truncate the ruling, it seems unlikely that they would go so far as to say the gov't can prohibit even modest functional firearms for home-only defense.

Plaintiff Parker could appeal, but that would only be regarding standing.

Heller can't appeal - he won.

For DC to lose an appeal means the precedent goes nationwide instantly - and a lot of people will act on that. The anti-gun crowd can't risk that.

For all the DC mayor's bluster on the subject, I imagine some very powerful people will have a very quiet conversation with him, and he will quietly cope with handing out home-only permits.
 
Quote:
I have often been tempted to ask here on this forum how many THRers think that the Second Amendment permits absolutely no restrictions whatsoever on RKBA, and that we should accept nothing less, but I have not had the courage to do so.

It's been asked more than once and the number is surprisingly large.

Even the most extreme are usually nuanced enough to differentiate between restrictions on possession/carriage and restrictions on actual criminal use.

Most of the "not quite that extreme", will look at the rest of the BOR for examples of "reasonable restrictions", which again are focused more on misuse, typically criminal in nature ("yelling fire in a crowded theatre" being the trope). In such cases the non-aggression principle shines.


I have heard the "fire in a theatre" argument before and it holds no water. (sic) Antis like to trot out that old tired horse as a reasonable restriction on the First Amendment and use it to support their evil designs on the second.

Well they, and anyone else that tries that old misdirection is wrong. You can yell FIRE in a theatre. No law exists prohibiting it, the only proviso is if you do yell it there had better be smoke and flames to justify your actions. You have the right to say ANYTHING and I do mean ANYTHING you choose to say. As long as what you say is the truth there is nothing any person or court can do to stop you. Threats of libel, slander etc. can hold no water, if you are speaking fact.

And the same theory should hold true for keeping and bearing arms. We have the right to keep and bear whatever we choose. No limits, no exceptions, no restrictions. It is the area of how they are used that is subject to reasonable restrictions. Just as you may not libel or slander without fear of repercussions so you cannot fire a weapon indiscriminately without fear of consequence. The antis have mixed the two areas together
to make it seem that controlling access and possession of arms is a control over use of arms. This is a fallacy.
 
http://www.buckeyefirearms.org/article3591.html

By Ken Hanson

The Second Amendment Foundation (SAF) is making some significant and breathtaking progress in the field of Second Amendment jurisprudence. SAF, together with Virginia attorney Alan Gura, has come up with an exquisite legal strategy to get the question of the Second Amendment as a fundamental, individual right squarely before the Supreme Court of the United States (SCOTUS) in the next two years.

While it is shocking to most people, the SCOTUS has never really had a case squarely dealing with the Second Amendment as an individual right, and has never reached the issue of whether the Second Amendment even applies to states. (Remember, prior to the 14th Amendment, the Bill of Rights as a whole did not necessarily restrict state action.) The SAF strategy has included filing very “limited in focus” lawsuits in 2 different federal districts, the Dearth case in Ohio’s Southern District and the Hodgkins case in Texas’ Northern District, as well as the Parker case in the D.C. District. Why so many different, and costly, lawsuits to answer one question?

Simple - two different strategies.

In the Dearth and Hodgkins cases, there are two suits with the same fact pattern attempting to address the question raised above. Why file essentially the same lawsuit twice? They were filed in courts that belong to two different appellate districts. In one district/circuit, the Texas 5th, a pro-2A decision would be expected. In the other, the Ohio 6th, a pro-gun control decision would be expected. This would result in the exact same fact pattern yielding two different decisions, meaning it is almost guaranteed that the SCOTUS would have to take up the issue and settle it once and for all. The SCOTUS has broad discretion on whether to hear a case or not. One of the most surefire ways to get a case in front of the SCOTUS is a “conflict” case, where the exact same fact pattern has been decided two different ways.

The Parker case presents an alternative approach. In that case, a rabidly anti-gun behemoth, the District of Columbia, is sued over their gun ban. Once procedural issues, such as standing to sue, are satisfied, the only issue left before the Court is deciding if the Second Amendment means what it plainly says. The Parker case includes a mix of Plaintiffs to address standing issues the District of Columbia can raise. This is not an insignificant feat; prior lawsuits on this issue have been dismissed on these same procedural grounds. Parker dodges this bullet, and attorney Gura and the SAF deserve a tip of the hat for getting the case through.

So now there is a case, Parker, that must squarely decide the issue near and dear to our hearts. It does so with fantastic results for gun owners – the Appellate court decides the Second Amendment is an individual right, just like all of the other rights contained in the Bill of Rights, and strikes down the D.C. gun ban. Now the District of Columbia must ask for the full court to review the case, called an en banc hearing, or take it right to the SCOTUS. Either way it appears a great fact pattern for gun owners, a complete gun ban, is destined for the SCOTUS in the next year.

But why do I care about the D.C. gun ban? Simple, this decision is now a decision that can be used in ANY state court action. While binding only in the District of Columbia, the Parker decision is quite persuasive and will be of use in the year or two that it takes to reach the SCOTUS. Most state courts will be bound by their own federal court interpretations for the near term, but Parker offers light at the end of the tunnel. The most critical factor of the Parker decision is that the court found the Second Amendment is just like any other right, and must be judged the same as the other rights, such as the First Amendment rights. This increased level of scrutiny is a nightmare for gun banners – they must now defend gun bans by demonstrating that there is a compelling state interest and the gun ban law clearly addresses that state interest. This is called “strict scrutiny” and it is used in cases involving a fundamental right, unlike the easier to satisfy “rationale basis” scrutiny.

This increased scrutiny is the most important part of the Parker case. Take Ohio, for example. In Ohio, our Federal district has not recognized the fundamental, individual right view; instead, the district has adopted the collective right view. Further, even though the Ohio Supreme Court has found that there is a fundamental, individual right to keep and bear arms under the Ohio constitution, the Court declined to apply the proper strict scrutiny test, and instead applied the looser, easier to satisfy rationale basis scrutiny. All of our gun bans have been decided under these easier standards. If Parker goes through the SCOTUS, just about all of Ohio’s anti-gun decisions for the last century go out the window.

It is very easy for a government to justify a gun ban under rational scrutiny. Under strict scrutiny, the government will have to show that the law clearly addresses a governmental interest. While the first prong, government interest, is easy to satisfy (the government clearly has an interest in fighting crime) the second prong, clearly addressing that interest, will be next to impossible for the government to prove. There is not one study that shows with any degree of certainty that gun control impacts crime.

Gun control disarms victims, not criminals.

The Parker case is a nightmare for gun banners. If the SCOTUS adopts this opinion (it might be as soon as this time next year the case makes it to the SCOTUS) the gun banners are all but finished. Think about that, rather than fighting for the next 5 years over the next Pelosi assault weapon ban, the issue is killed in the cradle.

This is a critical decision and strategy. Even if Parker fails to get up there, the Dearth and Hodgkins case are “on deck” to accomplish the same result.

This is a critical time for pro-gun groups. Buckeye Firearms Association depends on donations from you to bring you this type of pro-gun coverage. Click here to donate $50 and receive two books in return for your donation.

The SAF depends upon donations to pursue costly litigation. Click here to donate, and please mention in the comments you donated at the request of Buckeye Firearms Association.

Ken Hanson is Buckeye Firearms Association Legislative Chair and author of The Ohio Guide to Firearm Laws.
 
Well they, and anyone else that tries that old misdirection is wrong. You can yell FIRE in a theatre. No law exists prohibiting it, the only proviso is if you do yell it there had better be smoke and flames to justify your actions. You have the right to say ANYTHING and I do mean ANYTHING you choose to say. As long as what you say is the truth there is nothing any person or court can do to stop you. Threats of libel, slander etc. can hold no water, if you are speaking fact.

<ahem>

Well, duh.

Implicit in the example is that you are yelling "Fire" both where there is no fire and with deliberate malicious intent.

What that example demonstrates is that rights can be reasonably restricted in cases of criminal misuse.

Which is true in the case of firearms as well.
 
The reasonable restrictions bits are dicta.
How does one select a portion of the ruling and say it is dicta? How is it so clearly an "unnecessary aside"?

Because the questions before the court were:
1) "does the 2nd amendment protect an individual right"
2) "if there is a personal right, does it include non-military activities like self defense?"
3) "are modern handguns protected?"

You couldnt really reach a result in this case without answering those questions. So the court answered them and they thus form the holding of the case. This isnt an all inclusive list. There are all sorts of inferences that will be drawn from this case.

Things like "is registration a reasonable restriction of the right?" are outside the scope of this case. No one was challenging the registration laws in DC so the court's commentary on their likely constitutionality is not relevant to the outcome of this case. Their commentary is persuasive but not binding authority and a future case on that subject could go either way. That is what dicta is.
 
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