Appeals Court Overturns D.C. Gun Ban

[jimlongley]

I get a kick out of the post's language, "Guts" "weapons" etc. Kind of lets you know where they stand without coming out and actually saying it.

[135boomer]

This will be very interesting. Keep in mind that it may not go our way. This will be a fight.

[Rallyman]

....<snip>....

The 5th Circuit Emerson ruling (originating in Texas) also held that RKBA is an individual right, but sadly they held that this "right" is subject to "reasonable restrictions", and returned the case to lower court.

IANAL

I'm not happy about the reasonalble restrictions either but I consider this overall to be a huge victory. If we can get enough precedent or a SCOTUS decision stating that 2A is an individual right that will effectively cripple the anit's. Not that I think that they will go away, but they will have to change their approach. And I think that it will be an uphill battle from now on for them.

I think that it will be easier to argue "reasonable restrictions" than it is to argue if it is even a right at all. JMO!

[srothstein]

I am looking at the long haul on this. If we start getting the right recognized, even with reasonable restrictions, it is still a giant leap forward. And, if I understand the way it works correctly, this will help as we fight new fights. If the courts all recognize the 2A as an individual right, then the way we fight the restrictions changes. After that point, the government has a much harder case to prove in making the restrictions, including we can fight it if it doesn't actually work for the goal they claimed. To infringe on a right, the government must prove an overriding state interest in the right being infringed. They have to also prove it will work, which is how we can almost always win. If they claim it is to fight crime, they have to prove it will really reduce crime.

[Charles L. Cotton]

If the Supreme Court ultimately holds the Second Amendment to be an individual right, we face two possible futures, both good but one extremely good. (This assumes there is no constitutional amendment to change it.)

If the "right" is an individual right, it is subject to reasonable restrictions as are all rights. However, if it is found to be a "fundamental right," then it is much harder to craft a restriction that will be "reasonable." In fact, it’s almost impossible. This is called the "strict scrutiny test." For this reason, I doubt a Court will find it a "fundamental right" even though it clearly is in my view.

Chas.

[onerifle]

Chas- since there seems to be a clear split on indvidual vs collective rights between Circuit Courts, i.e., the Fifth and D.C. vs the Ninth and (I have forgotten which one), isn't this now a potential case which SCOTUS almost can't ignore?

[Charles L. Cotton]

Chas- since there seems to be a clear split on indvidual vs collective rights between Circuit Courts, i.e., the Fifth and D.C. vs the Ninth and (I have forgotten which one), isn't this now a potential case which SCOTUS almost can't ignore?

The issue is becoming one that is harder for the Supreme Court to ignore, but it can choose the case it wants to hear. Parker may or may not be taken up by the Court. The Supremes could ignore any individual case until one comes along with the facts it wants.

Chas.

[srothstein]

Thanks for the clarification on the different types of rights, Charles. I knew that the strict scrutiny test was harder and forgot about the difference between just an individual right and a fundamental right.

[kauboy]

Charles, in the text of the ruling in the PDF doc, the judges addressed that the founder's language of the 2nd Amendment clearly defines a guarantee of a pre-existing right. Wouldn't this help SCOTUS to view the 2nd as a "fundamental right"?

[Charles L. Cotton]

Charles, in the text of the ruling in the PDF doc, the judges addressed that the founder's language of the 2nd Amendment clearly defines a guarantee of a pre-existing right. Wouldn't this help SCOTUS to view the 2nd as a "fundamental right"?

It certainly should. This is one of the reasons I believe it is a fundamental right. The problem will come from the knowledge that a fundamental right is virtually impossible to regulate, because of the strict scrutiny test. The Supremes may be unwilling to saddle Congress with this restriction.

Chas.

[kauboy]

Its even sadder to think that they would seriously consider hog-tying the true meaning of the Constitution simply to appease the legislature.

[tomneal]

Looks like one for our side:



NEWS RELEASE
SAF SAYS D.C. CIRCUIT DENIAL ON RE-HEARING OF PARKER CASE WAS RIGHT
BELLEVUE, WA – This morning’s decision by the U.S. Court of Appeals for the District of Columbia to deny a petition from the District of Columbia for a hearing of Parker v. District of Columbia before the full court was “right and proper,� said Alan M. Gottlieb, founder of the Second Amendment Foundation.

“This is a strong signal that the D.C. Court of Appeals, which is the second most powerful court in the country, feels the original ruling by Senior Judge Laurence H. Silberman is solid,� Gottlieb stated. “It is now up to the district to accept the ruling and begin the process of licensing handguns to be kept legally in district residences, or to appeal the case to the Supreme Court.�

The Parker case has become the most significant Second Amendment case in the nation’s history, because for the first time, a gun control law was struck down on the grounds that it violated the Second Amendment right to keep and bear arms. Judge Silberman’s ruling found that the Second Amendment protects an individual right to bear arms that goes beyond service in a militia.

“The time is long past due for the Supreme Court to hear a case that has such gravity in terms of the Second Amendment and its true meaning,� Gottlieb observed. “For almost 70 years, a state of confusion has existed over whether the Second Amendment protects an individual civil right, as we are certain it does, rather than affirming some convoluted ‘collective right’ of the states to form militias. That interpretation has been carefully fabricated over the years by anti-gun zealots whose ultimate goal is to strip American citizens of their firearms rights.

“We think this question must be answered,� he continued, “to forever silence those gun control extremists who have been misinterpreting – we believe deliberately – the 1939 U.S. v Miller case in an on-going effort to destroy the cornerstone of the Bill of Rights, and the foundation for liberty in this country. This appears to be the right case, and this is certainly the right time.�

[tomneal]

More:

http://www.pr-inside.com/saf-says-d-c-c ... 118063.htm

http://www.dcist.com/archives/2007/05/0 ... _hea_1.php

http://www.prnewswire.com/cgi-bin/stori ... 696&EDATE=

[jimlongley]

And the Brady Bunch responds with:

May. 8, 2007 - Ladies Home Journal Details "A Nation Awash In Illegal Guns"

[Charles L. Cotton]

NEWS RELEASE
SAF SAYS D.C. CIRCUIT DENIAL ON RE-HEARING OF PARKER CASE WAS RIGHT
BELLEVUE, WA –
. . .

“For almost 70 years, a state of confusion has existed over whether the Second Amendment protects an individual civil right, as we are certain it does, rather than affirming some convoluted ‘collective right’ of the states to form militias. That interpretation has been carefully fabricated over the years by anti-gun zealots whose ultimate goal is to strip American citizens of their firearms rights.

I respectfully disagree with this portion of Mr. Gottlieb's evaluation of the Parker Case. The "collective right" argument is not 70 years old; it is of recent vintage.

Chas.