DC CIRCUIT COURT STRIKES DOWN GUN LAW ON 2A GROUNDS

[RealGun]

For DC to lose an appeal means the precedent goes nationwide instantly - and a lot of people will act on that. -ctdonath

I don't believe I am actually disagreeing, but the Court has not ruled that the 2A applies to the States via the 14A. DC is within federal jurisdiction. I figure the ruling is confined to the scope of DC, the Court speaks only for the federal government, and States can ignore it until challenged on 14A grounds. I'll take it as welcome precedent but wonder if some are getting a little too excited about the implications of this case.

What is so interesting re DC is that until FFLs are issued in DC, there will still be no way to be a legal gun owner in DC, even if this ruling stands and takes effect. To have legislated that one cannot buy a handgun outside a State of residence is a 2A infringement, and quite effective when coupled with a refusal to allow gun dealers in a "State". So what we have to watch for is DC fighting to prevent the introduction of gun dealers in DC. I believe they still have a line of defense for banning or prosecuting gun possession in DC.

Anybody want to underwrite the burglary insurance policy for a gun store in DC? Think about it. This is going to take awhile. The perfect place to allow purchase of firearms from another State is DC. It is not a State, it is subject to the Second Amendment, and the feds can regulate interstate commerce.

I don't believe DC can require a license for CCW because it would be a 2A infringement, if issuing the license has conditions for denial from a sane, free man. You won't find that condition in any real State until the 2A is applied to States via the 14A.

 

[Kharn]

Realgun:

What is so interesting re DC is that until FFLs are issued in DC, there will still be no way to be a legal gun owner in DC, even if this ruling stands and takes effect.

Not quite.

You'll notice that at least one of the plantiffs in Parker says that he owns weapons that he keeps in a different state. Anyone that moved to DC after they turned 21 might have a pistol stashed in a bank box or in a safe at Mom & Dad's house (outside of DC). Now they can register it and bring the weapon into DC, no FFL required.

Kharn

 

[RealGun]

Anyone that moved to DC after they turned 21 might have a pistol stashed in a bank box or in a safe at Mom & Dad's house (outside of DC).

That's just fly dirt in the pepper. How many have guns in a bank box? How many houses actually have gun safes? How many saw a need or otherwise had a desire to own a gun before living in DC? How many non-natives that came to work there actually live in DC? No, the gun ban for those interested was a reason to commute. Their guns are in VA and MD, more likely VA. Their numbers couldn't be great enough to create any sudden wave of gun possession in DC. The real difference will be for those who previously saw no way to legally own a gun and live in DC. If they cared enough, they wouldn't live there, so I am not sure thousands of people will suddenly be seeking purchase of a gun.

Still one of the greatest points of interest to me is that gun owners previously declined to congregate in protest in DC because they couldn't carry legally. Any notion of gun owners marching on Washington fizzled on that point.

 

[Waitone]

I am not enthusiastic about going to the SC. Campaign Finance Control and Kelo were self-evident unconstitutional legislation and both passed muster in the view of SCOTUS.

Until we have 7 or more on the court of Scalia's ilk, caution is advised.

 

[57Coastie]

LawBot5000 quite correctly says,

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.

Earlier in this thread, way up there somewhere, somebody asked a similar question in a different context, and the answer is similar. "Dicta" can briefly, if not completely, be fairly described as "a court's answer to a hypothetical question," a question the court has not had legitimately referred to it.

As I observed in response to the earlier question, if courts are permitted untrammeled authority to dictate enforceable answers to hypothetical questions without having the answer forged in the fires of a courtroom battle, The Rule of Law becomes The Rule of Judges.

As LawBot says, dicta is often persuasive when the question comes properly before a court in another case, but regrettably it is as well often confusing to not only laymen but also lawyers and, dare I say it, judges.

(As a somewhat humorous aside, and to relate a Freudian slip, when my stumbling fingers typed the last sentence I typoed "laymen" into "lawmen," which did not necessarily change the substance of the sentence).

Jim

 

[david_the_greek]

My god I listened to DC's mayor on NPR this morning and I have honestly never heard a more uneducated man (in respsect to the issue). no idea about how guns actually affect violence.

 

[Gray Peterson]

I am not enthusiastic about going to the SC. Campaign Finance Control and Kelo were self-evident unconstitutional legislation and both passed muster in the view of SCOTUS.

Until we have 7 or more on the court of Scalia's ilk, caution is advised.

I have a better thought: Now or never.

The political situation at least for the right to keep and bear arms is quite frankly, grim. On the Republican side, almost no one is stepping up very well. You have a flip flopping former Massachusetts governor and Rudy Guiliani, who supported reducing carry licenses in NYC. Those are the "two front runners" in the Republican party.

If this doesn't get to SCOTUS nowthe chances of us getting screwed is 100%.

 

[Bubbles]

DC Mayor & City Council Ignorance

My god I listened to DC's mayor on NPR this morning and I have honestly never heard a more uneducated man (in respsect to the issue). no idea about how guns actually affect violence.

Be happy that the DC Mayor and City Council are comprised of ignorant leftists. Why? Because if they were smart they wouldn't appeal and risk a USSC ruling against them.

RKBA activists want this case to go forward for several reasons. First, it's a clean, narrow, well-defined case, it doesn't involve felons, and the plaintiffs have standing to sue.

Second, the decision is extremely well-researched and well-written. It plainly states that the Second Amendment protects an individual right of the people that pre-dates the Constitution.

Third, the dissenting opinion is pathetic and can be summarized as "The rights of DC residents aren't protected by the Constitution." Do they really want that to become the law of the land in DC? Kiss DC statehood goodbye...

Finally, RKBA activists want the USSC to hear this case and issue a ruling, once and for all, on whether or not the Second Amendment protects an individual right. At least then we'll know where we stand.

 

[jpk1md]

Bubbles, you heard Fenty's BS Too?

I started a thread with contact info for WAMU and NPR to complain about the biased programming and one sided news reporting.

http://www.thehighroad.org/showthread.php?t=261990

I urge everyone to call and complain as they are wasting YOUR tax dollars

 

[Bartholomew Roberts]

Anybody else notice that the NRA used the win to once again push its "D.C. Personal Protection Act" in Congress that would remove the ban? Does that strike anybody else as a partiicularly stupid move given the recent victory? If Congress removes the ban, then the case becomes moot. The en banc and Supreme Court will both likely deny the rehearing.

Seems like the NRA has had all the gambling it can stand and is ready to take its winnings and go home.

 

[ConstitutionCowboy]

If that is the case, Bart, I believe you are absolutely correct. It amounts to what would be a stupid move! Save the "D.C. Personal Protection Act" in case the court action fails.

I've been wrestling a pen full of alligators lately, and haven't had much time for anything, so I must thank you for this bit of insight.

Woody

"I pledge allegiance to the rights that made and keep me free. I will preserve and defend those rights for all who live in this Union, founded on the belief and principles that those rights are inalienable and essential to the pursuit and preservation of life, liberty, and happiness." B.E.Wood

 

[RealGun]

Anybody else notice that the NRA used the win to once again push its "D.C. Personal Protection Act" in Congress that would remove the ban?

Any links to their rationale for such an initiative? I'm not so sure it's a bad idea, not trusting the Courts to follow through on this undermining of gun control. There is also the question of what provisions the Act would include. For example, the Court decision says nothing about a non-resident's ability to legally exercise a right to be armed while in DC. It also says nothing about the liberty to carry concealed or openly, whether or not any licensing is involved. DC still has a very long way to go it would seem.

 

[57Coastie]

Bartholomew Roberts says,

Anybody else notice that the NRA used the win to once again push its "D.C. Personal Protection Act" in Congress that would remove the ban?

C'mon, Bart! Our own Kay Bailey, yours and mine, introduced the bill in the Senate.

Jim

 

[LawBot5000]

I think the NRA feels that the supreme court is going to continue to trend towards gun rights. It seems we are looking at a likely Obama or Hillary dem ticket which means a republican president and more pro-gun seats on the supreme court in 2008-2012.

They dont want to risk a crappy decision when the best they will likely get out of this decision wont even include incorporation. The DC victory accomplishes everything a supreme court non-incorporation victory does. Of course if we can actually get a 5-4 "2nd is individual, 2nd protects handguns, 2nd protects self defense AND 14 incorporates it" decision out of the supreme court, THEN we have won more than we won here in Parker. Otherwise we are better off taking Parker and running with it.

 

[Bartholomew Roberts]

Well, the good news of passing such an act would be the en banc hearing would almost certainly be denied along with cert to SCOTUS.

So the original three-panel decision in Parker (which is pretty good) would be binding precedent in the D.C. Circuit until some other case came up on the 2A and the en banc court issued an opinion on that.

The bad news is that Parker is one of the rare 2A cases where all the people in it are good guys and overturning the federal law in question doesn't arm any criminals. The vast majority of 2A case law is made up of some pretty questionable defendants. Miller was a bootlegger. Emerson threatened his wife and daughter with a handgun. Not really the kind of defendants you want for a make or break case.

NRA gave no rationale for it. They just sent out the typical rah-rah action alert via NRA-ILA. I think we need to call NRA up and ask them what the hell they are trying to do here; because this strikes me as a bad idea if we want a good case to go to SCOTUS any time soon (and I do want this).

 

[glummer]

Standing question

Many here have lamented the difficulty of getting legal standing in 2A cases; i.e., to show harm you generally have to risk arrest, and conviction, and possible loss of rights, not to mention prison time. A real risk.
An alternative occurred to me – what if the “offense” which triggers your jeopardy is fake?
Say I approach the local PD, asking if they know a good place to shoot the machine gun I just inherited from my granddaddy – when I’m told it’s illegal, I depart hastily. Shortly thereafter the JBT’s show up; maybe they even have a warrant. They search my house, maybe arrest me, likely seize any weapons they find – all this is harmful to me, is it not?
If there never was a machine gun, do I still have standing to sue, even though I can’t be convicted of the crime they thought I was committing?

 

[Frohickey]

Bartholomew Roberts said

Anybody else notice that the NRA used the win to once again push its "D.C. Personal Protection Act" in Congress that would remove the ban? Does that strike anybody else as a partiicularly stupid move given the recent victory? If Congress removes the ban, then the case becomes moot. The en banc and Supreme Court will both likely deny the rehearing.

Seems like the NRA has had all the gambling it can stand and is ready to take its winnings and go home

The NRA has been crowing that this Parker vs DC case is its case, and its not. The case is Cato Institute's case.

While the NRA is good in its gun training and marksmanship programs, its terrible in its Second Amendment advocacy efforts. The NRA treats gun politics as a cash cow. Its a cash cow for them in that with the 'threat' of gun bans, and the way the state of 2A politics, they can ask and receive donations to help stop DiFi, or Schumer, or whoever else.

 

[Deanimator]

Third, the dissenting opinion is pathetic and can be summarized as "The rights of DC residents aren't protected by the Constitution." Do they really want that to become the law of the land in DC? Kiss DC statehood goodbye...

I'd LOVE to be a SC justice hearing THAT argument...

"So counselor, what you're saying is that the Bill of Rights does not apply in the District of Columbia? Therefore, if the 2nd Amendment is not applicable to residents of the District, neither is the 13th?"

Anti-gunners arguing that slavery is legal in DC would be both surreal AND 100% in keeping with the history of gun control in this country...

 

[madmike]

The Supremes aren't going to let the rebellious COA deviate from the script.

Which "Script" is this?

 

[57Coastie]

Glummer asks,

what if the “offense” which triggers your jeopardy is fake?

I would suggest that you can without doubt find out the answer to your question by trying it. New York -- a good state in which to try it. Then you will undoubtedly learn through personal experience what is really meant by "putting your liberty where your mouth is."

I would suspect, Glummer, that you would indeed go to jail either sooner or later, but not for having a machine gun. You would go to jail for something else, be it hindering the police in the conduct of their duties, for contempt of court if it goes that far, or who knows what. If I were knowledgeable in the law of the state of New York I might be able to give you a longer laundry list. I assure you that the state authorities would have no problem coming up with a very long list.

Your own words here, BTW, demonstrate that you would ultimately be in no "jeopardy" for having a machine gun in violation of the law, which was your purpose in the first place.

FWIW, I have personally seen that more than one person was prosecuted for making a false report to a law enforcement agency, in this case a federal agency, although I must say that those cases did not include a person falsely admitting to the commission of a crime. In your case, one of New York's Finest might be tempted to arrest you for the offense you falsely claimed to have committed and let you cool your heels in the worst part of the nearest confinement facility while he "investigated" the situation at length, which undoubtedly would include a search warrant authorizing the destructive search of your home and/or business. Who knows, he might even find an unlawful weapon during that search. That does happen, you know.

One of the good things about our criminal law here in the 'States is that some evidence must show up other than just a confession in order to gain a conviction. He would arguably be derelict in his duties if he failed to look into finding such evidence when you attempt to retract your confession.

Let's get serious. What may be happening with respect to the Second Amendment does not permit of any fooling around. Earlier someone observed that when we send a case up we must be sure we are sending the right case up.

I promised myself some time ago that I would no longer get involved in "what ifs," but I relent when there is a danger that somebody might be serious.

With respect,

Jim

 

[Bartholomew Roberts]

While the NRA is good in its gun training and marksmanship programs, its terrible in its Second Amendment advocacy efforts. The NRA treats gun politics as a cash cow. Its a cash cow for them in that with the 'threat' of gun bans, and the way the state of 2A politics, they can ask and receive donations to help stop DiFi, or Schumer, or whoever else.

Assuming I agreed with that interpretation, an individual rights decision at the Supreme Court level wouldn't change that a bit. Look at pro-choice groups after Roe v. Wade or the NAACP after Brown v. Board of Education. Both groups are bigger and better funded now than they were when they challenged the law... and neither of them have the additional business that the NRA does in range safety and competition.

 

[glummer]

57Coastie

I would suspect, Glummer, that you would indeed go to jail either sooner or later, but not for having a machine gun. You would go to jail for something else, be it hindering the police in the conduct of their duties, for contempt of court if it goes that far, or who knows what. If I were knowledgeable in the law of the state of New York I might be able to give you a longer laundry list. I assure you that the state authorities would have no problem coming up with a very long list.

I have no doubt you are right about the “who knows what” and the “laundry list.” But that is beside the point. WOULD I HAVE STANDING to sue for injury? If so, this tactic could be used for challenging many sorts of laws, without risking the severest penalties. “hindering the police in the conduct of their duties” is not the same as lifetime loss of gun rights, and hard time in Federal prison. And, I’m sure that a good lawyer could provide useful guidance to minimize what risks one did run.
Would it be practical, as a less-risky option, is what I’m asking?

 

[57Coastie]

Glummer asks,

Would it be practical, as a less-risky option, is what I’m asking?

No.

Can't you understand that you suggest a tactic of putting yourself in sufficient jeopardy to attain judicial standing by saying something which you yourself admit in the next breath does not put you in that jeopardy?

I suppose I overdid the cynicsm earlier, and for that I will apologize, even though I was really trying to be helpful. About one thing I will agree with you -- if you ask for advice, and then belittle and dismiss the advice you receive, you should indeed get a "good" lawyer -- or even better, several "very good" lawyers. Then pay them a substantial sum for the advice they give you. In all seriousness, you may find a lawyer somewhere up there in New York who is willing to give you the advice to which you seem to feel yourself entitled, so long as you pay him enough for it to make it worth the risk he may be taking by giving you that advice.

If any one of those very good lawyers pats you on the back, after you pay him, and says that you suggest a perfect case to take up to the U. S. Supreme Court as the ultimate test of the meaning of the Second Amendment, and that he would be happy to bring the lawsuit for you, he, along with you, will likely find himself in serious trouble, with both the bar and, if it goes so far, also in contempt of court for bringing your facetious lawsuit.

I now again revert to my promise to not get involved in "what ifs."

No -- not just yet. I must make it very clear that I am certainly not that "good" lawyer you seem to be looking for, and much less am I your lawyer or the lawyer of anyone reading this forum, and I am not qualified to give you any legal advice. Even if I were so qualified, I will say over and over to everyone reading this forum that I can think of not many worse places for someone to look for legal advice than an internet forum. Nobody may consider anything I have said to be legal advice. But I will give you the nonlegal advice that you give your question to someone qualified to give you legal advice. Come back and tell us what he says.

With respect,

Jim

 

[madmike]

Glummer: you're proposing to lie to the police to instigate an event.

Think about that.

 

[Sam Adams]

What is so interesting re DC is that until FFLs are issued in DC, there will still be no way to be a legal gun owner in DC, even if this ruling stands and takes effect.

Maybe for handguns (excepting the limited number owned by DC residents in bank boxes elsewhere), but not for long guns - they can go across the river to VA, or to MD and buy a rifle or shottie.

The fact is that the immediate and even intermediate impact on DC gunowner-wannabees will not be too great. What's significant, of course, is the language that the 2nd protects a broad, pre-existing individual right. The next step is a 14th Amendment challenge to some state's law(s) banning some rifle (like NJ or CA regarding "assault rifles." It is all a question of whether the case is heard by the Supremes with the same or a very similar result. If so, the salami slices will come from our side for the next few years as rights are regained and restrictions sloughed off like a dead and useless skin.

Next could be 922(o) (restricting post-'86 MG registration for the public), and maybe the '34 NFA itself. It'd be interesting - Parker affirmed by the Supremes, followed by someone's attempt to buy a post-'86 MG, the BATF saying "No, the law doesn't allow us to register it or give you a tax stamp for it" followed by a suit under the 2nd.