The D.C. Circuit Court Of Appeals And Second Amendment Rights
From My Cold Dead Blogging Fingers!
By Pejman Yousefzadeh Posted in Featured Stories | Law — Comments (17) / Email this page » / Leave a comment »
The D.C. Circuit Court of Appeals struck down a D.C. gun control law that prevents people from keeping handguns in their own home. In doing so, the Court found that the Second Amendment confers an individual right to bear arms and not just a collective right to "militias."
This is a welcome ruling for the reasons detailed by Eugene Volokh (read the whole chain) and Gene Healy. I agree with others who believe that it will prompt Supreme Court review thanks to the jurisdictional split that it has prompted.
Read on . . .
Opponents of an interpretation granting inedividual Second Amendment rights will likely cite United States v. Miller to refute the ruling of the D.C. Circuit Court of Appeals. They shouldn't. All the Supreme Court did in Miller was to find that
[I]n the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.
In short, the Supreme Court stated that a sawed-off shotgun did not have "some reasonable relationship" with the preservation of a well regulated militia. But from this narrow ruling, one cannot glean that the Supreme Court was saying that an individual right to bear arms could not be found in the Second Amendment. As such, Miller does not have the persuasive power that anti-individual rights advocates likely claim it has.
The D.C. Court's ruling was not the first one to find the existence of an individual rights component to the Second Amendment. In 2001, the Fifth Circuit found in United States v. Emerson that the Second Amendment
protects the rights of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms.
This right is not absolute, but then, no right is. Just about every right has some kind of restriction on it. That having been conceded, the Emerson court's ruling is a significant one and appears to be in line with the D.C. Circuit Court's ruling. (Note that Eugene Volokh had to issue a reminder concerning Emerson's existence in discussing the New York Times's coverage of the D.C. Circuit Court decision.)
Another argument against a finding that the Second Amendment confers an individual right to bear arms will likely center on the prefatory language of the Second Amendment "a well regulated Militia being necessary to the security of a free State . . ." As with the likely attempted application of Miller, this prefatory language will likely be used to argue that the Second Amendment only applies to militias, not to individuals.
But again, this argument makes little sense and again, it is fairly demolished by Eugene Volokh. In this article, Professor Volokh shows that if we wanted to limit the application of rights merely because of the existence of prefatory language in granting those rights, we would find ourselves in the middle of one raging controversy after another. Did you know that Rhode Island's constitution has prefatory language concerning free speech? 'Tis true:
The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty . . . .
And how about the following from New Hampshire's constitution?
In criminal prosecutions, the trial of facts in the vicinity where they happen, is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed . . . .
And the following from the constitution of the Commonwealth of Massachusetts:
The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever.
Think that any of this prefatory language limits free speech rights and the conduct of criminal trials? You shouldn't; as Professor Volokh shows, the existence of prefatory language in the granting of a constitutional right is entirely normal and when it comes to prefatory language creating two clauses in the granting of a particular constitutional right, these examples show "how the two clauses might be read together, without disregarding either." So if we are not going to limit free speech rights or the conduct of criminal trials because of the existence of prefatory language in the constitutional provisions concerning those issues, why should we do so when it comes to the Second Amendment?
All of this shows why the D.C. Circuit--and the Fifth Circuit before it--were right to find the existence of a robust individual rights application of the Second Amendment. As I write above, I believe the Supreme Court will take up this issue to address the jurisdictional conflict that has been created. If it does, by all rights, the D.C. Circuit's finding ought to be sustained and the individual rights interpretation of the Second Amendment ought to be enshrined in the Court's jurisprudence.
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has justly been considered as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers" Justice Joseph Story
Referring to the 2nd Amend. and Blackstone," This may be considered the true palladium of liberty". St.George Tucker
Some morons have referred to Miller v USA as justification for the Militia/National Guard argument. Decided in the 1930's it restricted the rights of citizens to own sawed off shotguns and machine guns and had more to do with Bonnie & Clyde than with the general citizenry.
There never has been a militia argument, some of the states in their ratifying conventions even stipulated hunting and self defense as reasons for gun ownership and one of the Founders had said "the people is the militia".
Not that liberals wish to mangle and destroy the Constitution, I know they love it too much, but they do spend an inordinate amount of time trying to obliterate old, clearly understood rights and pull new ones out of their silk hats like rabbits by the ears. A mere and human inconsistency I'm sure.
"a man's admiration for absolute government is proportinate to the contempt he feels for those around him". Tocqueville
This is a classic example. Outlawing sawed off shotguns is no deterrent to any criminal that can purchase a shotgun and a hacksaw. They might as well just raised the penalty for committing a crime with the weapon. The machine gun law hasn't done anything to stop criminals from using them. Bonnie and Clyde stole theres from national guard armories.
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"Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it."
-Thomas Paine: The American Crisis, No. 4, 1777
sawed-off shotguns have been used by both the army and marines as effective arms to hold off enemy incursions into buildings they held. And if I were a militia man holding off an invading army, I should certainly want the use of a fully automatic machine gun over even a single-pull-single-shot but reloading rifle. Alas, even SCOTUS is not immune to popular sentiment over the logic of the law.
In WW 1 the sawed-off was called a "trench gun" for obvious reasons. The Miller statement of "no evidence" means strictly that. The defence made no evidentiary showing at all, the defendent having skipped out by then.
The defendant died in jail before he could testify and his lawyer didn't put up a defense because of that.
in the morning, but it is a happy day (http://www.washtimes.com/metro/20070309-102401-2730r.htm). The Times picked the following as the key finding in the Court's 2-1 decision:
"The District insists that the phrase 'keep and bear arms' should be read as purely military language, and thus indicate a civic, rather than a private, guarantee. The term 'bear arms' is obviously susceptible to a military construction. But it is not necessary to construe it exclusively so.
The dissenting opinion seems not to address this central finding, as it argues the District ought not be bound by the amendment because the District is not a State.
Mayor Fenty also made a rather ludicrous statement:
The ruling also turns aside precedents and marks the first time in the history of the United States that a federal appeals court has struck down a gun law on Second Amendment Grounds.
I imagine Fenty wouldn't object to the first court to strike down Jim Crow laws, although they were in existence for a good bit more than the District's 30 year statute, and had plenty of precedent behind them, including a rather distasteful one from SCOTUS itself. The length of time between when a law is passed and when the court renders its decision is no measure of how constitutional any given law is. As for the fact that this is the first time the amendment has been so used, well, maybe in the past the legislatures across the country had a bit more respect for the constitution, and didn't rely on the courts as their sole means of remedy for the sins of the state.
Since the case was only heard by three of the circuit's judges, I expect to see the case reheard by the full court before it moves to the Supreme Court. Right now the decision is binding only on one district while the others may continue to vote the other way (decisions involving some logic, I can't bring myself to describe the process elsewise). If it goes directly to the Supreme Court, they could lose the whole ball of wax in one shot.
it appears I should have put elipises in the quote from the brief as the two parts are separated by many pages.
More importantly I find the following:
In determining whether the Second Amendment’s guarantee is an individual one, or some sort of collective right, the most important word is the one the drafters chose to describe the holders of the right—“the people.” That term is found in the First, Second, Fourth, Ninth, and Tenth Amendments. It has never been doubted that these provisions were designed to protect the interests of individuals against government intrusion, interference, or usurpation. We also note that the Tenth Amendment—“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”—indicates that the authors of the Bill of Rights were perfectly capable of distinguishing between “the people,” on the one hand, and “the states,” on the other. The natural reading of “the right of the people” in the Second Amendment would accord with usage elsewhere in the Bill of Rights.
The District’s argument, on the other hand, asks us to read “the people” to mean some subset of individuals such as “the organized militia” or “the people who are engaged in militia service,” or perhaps not any individuals at all—e.g., “the states.” See Emerson, 270 F.3d at 227. These strained interpretations of “the people” simply cannot be squared with the uniform construction of our other Bill of Rights provisions. Indeed, the Supreme Court has recently endorsed a uniform reading of “the people” across the Bill of Rights.
I will take that as both devastating and definitive.
All of the arguments to limit the 2nd amendment fail miserably.
First, the Constitution proper dilineates specific authorities of governement with the implied intent that everything else is forbidden to government - which concept becomes explicit in the ninth. The Bill of Rights on the other hand, dilineates, in every case, rights of the people, specifcally to be free from the arms of those governing. Thus the right to the people to not have speech infringed by government, to be free from government search and seizure, to protect religion from the state (and not the other way around), to allow the people to arm themselves to protect themselves (not from criminals, but) from the government.
Second, the traditional definition of militia is every able-bodied male resident, citizen and non-citizen; hence the people.
Third, the idea was that people be armed so that they could, at need, form militias to protect themselves from the government.
Fourth, the militia is NOT the national guard or any part of the military - those who drafted this amendment were minutemen; a national guard of the day would have been wearing red, not blue.
etc, etc.
I have not heard one constitutional valid argument against owning and bearing arms.
If the loony left wants to change this, the drafters gave them a method - amend the Constitution. Agreeably, this is difficult, but it is intentionally difficult.
Type too quickly, "ninth" s/b "tenth."
the best news i've heard all week.i'm sure the anti 2nd amendment crowd will be up-in arms about this.arm yourself,refuse to be a victim!
"A free people ought to be armed" - George Washington
structures, mine among them, specifically in response to assaults on the 2nd Amendment. I think this has been done primarily in The West, but most of the older states have long had the laws on the book, they've just lapsed into disuse.
Alaska has the Alaska State Defense Force which maintains an officer and NCO structure full time. They are unpaid and unarmed by the State, but can and have been called out for various purposes, at which time they are paid like State active duty national guardsmen.
There is also a structure for an Alaska Naval Militia, but I know less about it. I ought to look into it; if I turn my boat in to a flagged vessel of the Naval Militia, maybe I can deduct the fuel when I go "on patrol."
In Vino Veritas
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.
(Parker v District of Columbia (pdf), p.46)
I started to emphasize certain parts of that, such as the words "such as", but then I decided not to sully superior writing with unnecessary adornment.
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See the Academy
FINALLY!!!! Common Sense...........besides if WE had to, we could have formed the "Red State Blog" Militia right guys? Wink*
Took way too many years to reach this correct decision. You simply can NOT read the First Amendment one way and the Second Amendment another...(although many try).
Looking for the crime rate to drop drastically in the next few years...
Formally known as Deagle... "Golf is a way of life..."
During the 1700's there were no modern highways or roads protected by a police force. One could leave a large city and within a couple of miles, be totally in the wilderness. People had to travel for reasons of commerce or to just visit relatives and they would be in constant danger from large predatory animals or thieves. Since they could not take the militia with them everywhere they went, and could not call 911, what else would they be left with but defending themselves by carrying guns.
Denying the "people" the right to bear arms would have been irresponsible in the least, and to say our founders meant to deny them this right, or not assure them of it, is to be ignorant of history.
...is better for conservatives in the long run.
Both sides may agree that the arguments for interpreting the Second Amendment are mostly academic but, as I understand it, the amendment calls for an individual right to bear arms, with the understanding, particularly in 18th-century times, that militias would be gathered on an as-needed basis from among already-armed individuals as an available resource.
Back to modern-day Washington, D.C., one would think many people couldn't keep a straight face arguing that a high local crime rate is any rationale for disarming potential victims, but of course more than a few manage to do just that.
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