| [Ben]: | DC Gun Ban struck down! | Discuss This [1 comment so far] View Comments | Check out this very interesting ruling.
Edit: I'm going to end up quoting nearly the whole thing ...
You have to read this thing. Seriously. It is groundbreaking. It establishes the Second Amendment as an individual right, it establishes that the Second Amendment covers self-defense (to include the overthrow of an oppressive government) and that weapons necessary to modern military service are covered. The application in this case was to cover a handgun, but handguns are not the only (or even primary!) weapon that the military uses ...
Absolutely amazing.
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. |
The modern handgun—and for that matter the rifle and
long-barreled shotgun—is undoubtedly quite improved over its
colonial-era predecessor, but it is, after all, a lineal descendant
of that founding-era weapon, and it passes Miller’s standards.
Pistols certainly bear “some reasonable relationship to the
preservation or efficiency of a well regulated militia.” They are
also in “common use” today, and probably far more so than in
1789. Nevertheless, it has been suggested by some that only
colonial-era firearms (e.g., single-shot pistols) are covered by
the Second Amendment. But just as the First Amendment free
speech clause covers modern communication devices unknown
to the founding generation, e.g., radio and television, and the
Fourth Amendment protects telephonic conversation from a
“search,” the Second Amendment protects the possession of the
modern-day equivalents of the colonial pistol. See, e.g., Kyllo
v. United States, 533 U.S. 27, 31-41 (2001) (applying Fourth
Amendment standards to thermal imaging search). |
SILBERMAN, Senior Circuit Judge: Appellants contest the
district court’s dismissal of their complaint alleging that the
District of Columbia’s gun control laws violate their Second
Amendment rights. The court held that the Second Amendment
(“A well regulated Militia, being necessary to the security of a
free State, the right of the people to keep and bear Arms, shall
not be infringed”) does not bestow any rights on individuals
except, perhaps, when an individual serves in an organized
militia such as today’s National Guard. We reverse. |
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. In United States v. Verdugo-
Urquidez, 494 U.S. 259 (1990), the Court looked specifically at
the Constitution and Bill of Rights’ use of “people” in the course
of holding that the Fourth Amendment did not protect the rights
of non-citizens on foreign soil: |
In sum, the phrase “the right of the people,” when read
intratextually and in light of Supreme Court precedent, leads us
to conclude that the right in question is individual. This
proposition is true even though “the people” at the time of the
founding was not as inclusive a concept as “the people” today.
See Robert E. Shallope, To Keep and Bear Arms in the Early
Republic, 16 CONST. COMMENT. 269, 280-81 (1999). To the
extent that non-whites, women, and the propertyless were
excluded from the protections afforded to “the people,” the
Equal Protection Clause of the Fourteenth Amendment is
understood to have corrected that initial constitutional
shortcoming. |
The wording of the operative clause also indicates that the
right to keep and bear arms was not created by government, but
rather preserved by it. See Thomas B. McAffee & Michael J.
Quinlan, Bringing Forward the Right to Keep and Bear Arms:
Do Text, History, or Precedent Stand in the Way?, 75 N.C. L.
REV. 781, 890 (1997). Hence, the Amendment acknowledges
“the right . . . to keep and bear Arms,” a right that pre-existed
the Constitution like “the freedom of speech.” Because the right
to arms existed prior to the formation of the new government,
see Robertson v. Baldwin, 165 U.S. 275, 280 (1897) (describing
the origin of the Bill of Rights in English law), the Second
Amendment only guarantees that the right “shall not be
infringed.” Thomas Cooley, in his influential treatise, observed
that the Second Amendment had its origins in the struggle with
the Stuart monarchs in late-seventeenth-century England. |
The right of self preservation,
in turn, was understood as the right to defend
oneself against attacks by lawless individuals, or, if absolutely
necessary, to resist and throw off a tyrannical government. |
With respect to the right to defend oneself against tyranny and
oppression, some have argued that the Second Amendment is utterly
irrelevant because the arms it protects, even if commonly owned,
would be of no use when opposed to the arsenal of the modern state.
But as Judge Kozinski has noted, incidents such as the Warsaw ghetto
uprising of 1943 provide rather dramatic evidence to the contrary. See
Silveira, 328 F.3d at 569-70 (dissenting from the denial of rehearing
en banc). The deterrent effect of a well-armed populace is surely
more important than the probability of overall success in a full-out
armed conflict. Thus could Madison write to the people of New York
in 1788: |
Such outlandish views are likely advanced
because the plain meaning of “keep” strikes a mortal blow to the
collective right theory. |
17Of course, the District’s virtual ban on handgun ownership is
not based on any militia purpose. It is justified solely as a measure to
protect public safety. As amici point out, and as D.C. judges are well
aware, the black market for handguns in the District is so strong that
handguns are readily available (probably at little premium) to
criminals. It is asserted, therefore, that the D.C. gun control laws
irrationally prevent only law abiding citizens from owning handguns.
It is unnecessary to consider that point, for we think the D.C. laws
impermissibly deny Second Amendment rights. |
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| 2007-03-09
Permanent Link:
DC Gun Ban struck down! |
