DC Gun ban getting closer to SCOTUS review.

[LoginName]

Which ever way the federal appeals court rules, it's pretty much a given that the losing side will appeal. Whether or not the SCOTUS will actually hear the case is another matter (I'd be shocked if they did), and the even more important question... would it be a good thing for gun owners (I have a feeling that it wouldn't be).

Scope of 2nd Amendment's Questioned

By MATT APUZZO
The Associated Press
Thursday, December 7, 2006; 8:49 PM

WASHINGTON -- In a case that could shape firearms laws nationwide, attorneys for the District of Columbia argued Thursday that the Second Amendment right to bear arms applies only to militias, not individuals.

The city defended as constitutional its long-standing ban on handguns, a law that some gun opponents have advocated elsewhere. Civil liberties groups and pro-gun organizations say the ban in unconstitutional.

At issue in the case before a federal appeals court is whether the Second Amendment right to "keep and bear arms" applies to all people or only to "a well regulated militia." The Bush administration has endorsed individual gun-ownership rights but the Supreme Court has never settled the issue.

If the dispute makes it to the high court, it would be the first case in nearly 70 years to address the amendment's scope. The court disappointed gun owner groups in 2003 when it refused to take up a challenge to California's ban on assault weapons.

In the Washington, D.C., case, a lower-court judge told six city residents in 2004 that they did not have a constitutional right to own handguns. The plaintiffs include residents of high-crime neighborhoods who want guns for protection.

Courts have upheld bans on automatic weapons and sawed-off shotguns but this case is unusual because it involves a prohibition on all pistols. Voters passed a similar ban in San Francisco last year but a judge ruled it violated state law. The Washington case is not clouded by state law and hinges directly on the Constitution.

"We interpret the Second Amendment in military terms," said Todd Kim, the District's solicitor general, who told the U.S. Court of Appeals for the District of Columbia Circuit that the city would also have had the authority to ban all weapons.

"Show me anybody in the 19th century who interprets the Second Amendment the way you do," Judge Laurence Silberman said. "It doesn't appear until much later, the middle of the 20th century."

Of the three judges, Silberman was the most critical of Kim's argument and noted that, despite the law, handguns were common in the District.

Silberman and Judge Thomas B. Griffith seemed to wrestle, however, with the meaning of the amendment's language about militias. If a well-regulated militia is no longer needed, they asked, is the right to bear arms still necessary?

"That's quite a task for any court to decide that a right is no longer necessary," Alan Gura, an attorney for the plaintiffs, replied. "If we decide that it's no longer necessary, can we erase any part of the Constitution?"

The case is: Shelly Parker et al v. District of Columbia, case No. 04-7041.

http://www.washingtonpost.com/wp-dyn/content/article/2006/12/07/AR2006120701001.html

 

[Thor67]

I'd be willing to bet that with Roberts, Alito, Thomas, and Scalia on the court, the case will be heard when it comes time.

I was hoping for another Bush appointment while the Republicans still held a two house majority, but those hopes are dashed!

 

[Rockrivr1]

Couldn't an argument be made that members of Gun Clubs are in actuality, a well regulated militia? There is a chain of command in the board of directors that use distinct rules that need to be followed by it's members. There usually is a range qualification needed to prove safe gun handling that militias would follow as well.

Members = Militiamen & Militiawomen.

If SCOTUS says that the second ammendment is set up for Militias and not an individual right, they will also need to quanify what a militia is. That could be a very touchy debate

 

[sksguns]

...and totaly discount "the right of the people to keep and bear arms"????

somebody define this fo rme please....

 

[Garys]

I was just going to post a story about this. Fortunately, I saw this one first so Len won't have to reach for his "moderator hat".

"I ask, sir, what is the militia? It is the whole people, except for a few public officials."
— George Mason, in Debates in Virginia Convention on
Ratification of the Constitution, Elliot, Vol. 3, June 16, 1788

Let's hope the courts agree.

Gary

 

[dwarven1]

This is very scary... no matter which way the court rules, there's going to be a huge fallout from this.

Great opportunity, great danger.

 

[JonJ]

This is very scary... no matter which way the court rules, there's going to be a huge fallout from this.

Great opportunity, great danger.

Yup but a showdown that HAS to happen.

 

[drgrant]

Which ever way the federal appeals court rules, it's pretty much a given that the losing side will appeal. Whether or not the SCOTUS will actually hear the case is another matter (I'd be shocked if they did), and the even more important question... would it be a good thing for gun owners (I have a feeling that it wouldn't be).

At this point even if it goes against us, I doubt things would be any worse
than they already are, at least insofar as such a ruling is concerned. As it
stands at this point, no government entity clearly endorses or supports an
individuals right to keep and bear arms. So a "loss" here just means that we
end up with the same crappy status quo we've always had. (Which is that
states and other entities have had the power to make laws regulating guns
more restrictive than whatever federal laws exist.)

I'd much rather prefer to WIN obviously, but a loss being extremely
destructive sounds like an NRA red herring... the same one they keep
blathering about in regards to to getting a 2nd amendment case to
SCOTUS. IMO the "danger" is increased by standing around and
doing nothing.


-Mike

 

[Garys]

At this point even if it goes against us, I doubt things would be any worse
than they already are, at least insofar as such a ruling is concerned. As it
stands at this point, no government entity clearly endorses or supports an
individuals right to keep and bear arms.

Not true. The Dept. of Justice under Attorney General Ashcroft released this, http://www.usdoj.gov/olc/secondamendment2.htm in 2004. It clearly states the Executive Branch's position on the matter.

So a "loss" here just means that we
end up with the same crappy status quo we've always had. (Which is that
states and other entities have had the power to make laws regulating guns
more restrictive than whatever federal laws exist.)

I think you underestimate the impact. This would then give the anti gunners a definitive ruling on the matter, which they could bring to state legislatures.

I'd much rather prefer to WIN obviously, but a loss being extremely
destructive sounds like an NRA red herring... the same one they keep
blathering about in regards to to getting a 2nd amendment case to
SCOTUS. IMO the "danger" is increased by standing around and
doing nothing.

-Mike

Well, they might get their wish. This is definitely a Second Amendment case, and may well go to SCOTUS. No doubt, the NRA is already heavily involved in this. I think, but I'm not sure, that they have been working with plaintiff's counsel since the beginning.

Gary

 

[drgrant]

Not true. The Dept. of Justice under Attorney General Ashcroft released this, http://www.usdoj.gov/olc/secondamendment2.htm in 2004. It clearly states the Executive Branch's position on the matter.

That's just his opinion and is meaningless as far as the law is
concerned. I of course, agree with his opinion, but that doesn't mean
its worth a lick of salt when fighting a court battle. (Case in point, it hasn't
stopped his successor, Alberto Gonzalez, from making anti gun commentary that runs
directly counter to what ashcroft says. WRT banning "assault weapons" etc)

I think you underestimate the impact. This would then give the anti gunners a definitive ruling on the matter, which they could bring to state legislatures.

The antis are already basically more or less doing whatever they
want in their respective state legislatures. CA, MA, IL, NY, NJ,
and other states are perfect examples of this. They all have
shitty, extremely unconstitutional (by definition) gun laws and have
for a long time. They didn't have to pass any kind of a "federal law"
test of any kind to keep their laws on the books, or to
enforce them, that's for sure. I just don't see how the precedent
here could somehow "enable" states. The ones that are banning
guns are doing so already, with zero repercussions. No politico
says "but what about the 2nd amendment issues?" when they're
talking about a new anti gun bill... the constitution is simply
ignored because the 2nd is not incorporated and thus isn't binding, so
to them it's not even a fathomable concern.

This is true also on the federal level- look at all the laws starting at
NFA 34 and beyond.. Most of them would be considered clearly unconstitutional,
if held up to what the framers intent was. Very few federal gun laws would
withstand a true constitutional test.

I think more of the damage would be opinion wise; eg, it's a lot harder
for pro gunners to say it's an individual right when SCOTUS rules
against that notional. In the grand scheme of things that matters very
little anyways. The antis "get away" with making shit up like
the NG = "the militia", even though theres nothing to really support
that notional. At least our arguments will -always- have some basis in
fact and in historical terms. An "activist" court decision can't really
destroy that background Anyone that's studied even a portion
of the background behind the constitution knows damn well what the
framers meant when they wrote the 2nd amendment.

On one hand, there is some minor impact, on another hand there is no
impact at all... in many locales the gun debate is being waged on our
side with only casual use of the 2nd amendment as it's main
sword. A lot of the progress that has been made has been done by
injecting logic and reason into the debate, and not just hopping around
going "But it's our right!" . The debate must be moved beyond
that, because while RIGHTS are important, it does us little good if people
don't understand them in more clearly delineated terms....

John Ross talks about this somewhat at length in this article:

http://www.john-ross.net/mistakes.htm

Well, they might get their wish. This is definitely a Second Amendment case, and may well go to SCOTUS. No doubt, the NRA is already heavily involved in this. I think, but I'm not sure, that they have been working with plaintiff's counsel since the beginning.

Gary

I hope it does. We need it to go there. If we win it will be a considerable
victory... if we lose, then it's the same old status quo poop factory we're
dealing with now. (where SCOTUS and the legislature does nothing but
dodge the issue). They could also do that here, as well. They've had
wishy washy rulings on various things, eg, US v Miller, and this could very
easily be another one of those. The hope is that it will FORCE them to
at least look at the issue.

Edit: Looking back, there is SOME danger.. but the only danger is that it's going to close
this "legal window" of which the exploitability has been extremely limited anyways... I mean seriously...
does anyone really believe that that the court would come right out and say "its a GUARANTEED
individual right"... if they did, that would basically destroy about 95% of all gun laws overnight, with
possibly some narrow exceptions under the notional of "reasonable regulation". I'm not holding my
breath on that one. That's obviously the way it should be, but I think it doesn't have a very high
probability of becoming reality, at least not without some serious crap occurring. (eg, an uprising,
coup, or something like that).

-Mike

 

[calsdad]

Much of the argument about the meaning of the second amendment revolves around the definition of the word "militia". I have been wondering lately why somebody does not make a legal case about that. Given that we have had a number of historic event lately where "militia" could have served this country well - Katrina, and defense against terrorism, - I am wondering why somebody does not make a case that citizens are effectively prevented from having an actual "militia".

I know that the antis make the case that the National Guard is the militia - but that is the point. They aren't. Because the National Guard can, does, and is deployed overseas there might be a legal case that they are not "militia". I remember reading somewhere that Michael Dukakais actually tried to prevent the Feds from using Mass. National Guard outside the state - and was overruled. This is important legal evidence that the National Guard is not really "militia". Furthermore there are military analysts etc. who have come to the conclusion that the best defense against terrorist attacks is an actual citizen militia:

http://www.d-n-i.net/lind/lind_8_02_05.htm

The Swiss have had a citizens militia for hundreds of years - that was enough to dissuade the Nazis from invading, they are allowed to keep fully automatic rifles in their homes, and shooting festivals are a national sport. Maybe we are going about this the wrong way and the gun rights thing needs to be attacked differently.

The antis always appeal to emotion - they talk about gun crime, gun violence, etc. We need to appeal to emotion and let people see how they are made defenseless against terrorism by the goverment taking away their right to defend themselves. We need to do an end run around the antis'.

 

[FunYun]

Many states Constitutions implicitly recognize the right of the people to bear arms. So even if it goes bad, there’s lots of recourse.


This fact could and should be used to help set the motion that RKBA applies to the people.

 

[Emoto]

^ pages about this so far on AR15: http://ar15.com/forums/topic.html?b=1&f=5&t=524474&page=1

There are some posts alleging interference by the NRA with some fairly damning text. Obviously, we're not hearing the whole story, but still it makes one wonder.

The High Road has someone posting who was at the hearing: http://www.thehighroad.org/showthread.php?t=214203&page=17

 

[JonJ]

The High Road has someone posting who was at the hearing: http://www.thehighroad.org/showthread.php?t=214203&page=17

Thanks for posting this link.
Excerpted from the "transcript" posted at THR:
JSI is Justice Silberman, Kim is DC Lawyer.

JSI: govt wanted hunting and self-defense guns brought up in an emergency

Kim: but they were not protected by the 2dAmt; “bear” = military use; Mass. Const. uses “bear” in a military context

JSI: do we really want to rely on Massachusetts for this? (JSI guffaws)

Makes me sick to be from this state. We're a joke

 

[crak]

I was just about to post that.

Derek we need that smiley from ar15.com with the beatup bruised face with the missing teeth.

 

[Rob Boudrie]

This is true also on the federal level- look at all the laws starting at
NFA 34 and beyond.. Most of them would be considered clearly unconstitutional,
if held up to what the framers intent was. Very few federal gun laws would
withstand a true constitutional test.

NFA 34 imposed a transfer tax, rather than a ban on full auto firearms and silencers since it was obvious to congress at the time that the 2nd ammendment would not permit an outright ban.

But then, there was a time where federal courthouses did not maintain a separate secret docket (a list of cases being heard that is not available to members of the public and the media), and it was unthinkable that the US government could arrest a US citizen, on US soil, and imprison him for years without a trial or access to legal counsel.

Time sure have changed.

 

[Len-2A Training]

Please Read THR Thread!

Please read The High Road thread referenced by Emoto from page 17 onward (see post 13 above for URL). The person who attended the hearing and took notes of the points made and Q&A (posted on the above-referenced pages) provides some extremely valuable insight on the thought process of the various attorneys and judges.

This could be an excellent 2A case, as it involves upstanding citizens who have NOT committed any crime and the primary issue of the 2A.

Let's hope SCOTUS gets this case and puts the matter to rest. If they accept it, we can then break out the prayer beads or other items to appeal to a "higher authority" that SCOTUS "sees the light"!

LoginName, THANK YOU for bringing this to our attention.

Emoto, THANK YOU for the most valuable reference on THR.

 

[Lynne]

How long does it usually take for the courts to come up with an opinion? C-X? Scriv? I read THR - my brain is porridge right now, but I got the sense that DC residents might actually get their basic right to self defense back. At least my fingers are crossed.

 

[number9]

How long does it usually take for the courts to come up with an opinion? C-X? Scriv? I read THR - my brain is porridge right now, but I got the sense that DC residents might actually get their basic right to self defense back. At least my fingers are crossed.

I believe SCOTUS usually hear cases around now (i.e. toward of the year), and deliver a verdict around May through July of the next year.