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Thread: Group Takes D.C. Gun Laws to Court

  1. #1
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    Just saw this in the Washington Post. "...being unable to own handguns for personal use is a violation of the Second Amendment and are appealing a previous court decision." Of course the Brady folks are involved.

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    *****************************************
    OpenCarry.org Press Release –7 December 2006
    *****************************************

    I attended the hearing on 7 December 2006 re: Parker et al. v. District of Columbia, case No. 04-7041 before a 3 judge panel of the DC Federal Court of Appeals.

    Judges Silberman & Griffith peppered both sides critically with questions about standing to sue & the meaning of the Second Amendment. Parker et al. are apparently suing to invalidate:

    1. The DC handgun ban effected by a ban on issuance oflicenses to possess/carry handguns.

    2. The DC statute requiring that even properly berendered inoperable at all times, even at home when needed for self defense.

    But the DC solicitor general (Todd Kim), in vigorously defending the DC gun ban, & forcefully arguing that the plaintiffs had no standing to sue in federal court till they exhausted their remedies in DC local courts, clearly began to irritate Judge Silberman - Silberman finally asked Mr. Kim if an Asian person, denied the right to have a gun permit by DC on the basis of race, would have standing to sue in federal court?


    Incredulously, Kim, a manappearing of Asian descent, said NO!

    Kim also argued that under the Supreme Court'sMiller two part test, DC resident's constitutional claim to own handguns b/c handguns are not common to the District. To significant laughter in the courtroom, Silberman rejoined that DC residents appear frequently in DC courts on handgun related criminal charges!

    Silbermanscoffed at theidea that the Miller test could be defeated by simply banning guns, and action which would swallow the very rule itself.

    And Silberman noted wryly that many criminal cases involving handgun charges end up being nullified by DC juries anyway!

    Judge Griffith also seemed a bit incredulous at the DC position that the Second Amendment is an utter nullity.


    I predict thepanel will:

    1. Sustain standing of at least one of the Parker parties to sue.

    2. Hold that the Second Amendment provides an individual right to possess functional guns, including handguns, consistent with the Miller two part test.

    3. Remand the case to the district court for further proceedings consistent with the opinion.


    ###########
    Contact:
    Mike Stollenwerk
    http://www.OpenCarry.org
    (703) XXX-XXXX
    ###########

    References:

    "Scope of 2nd Amendment Questioned," The Associated Press, by Matt Apuzzo, at http://www.washingtonpost.com/wp-dyn...120701001.html

    "Group Takes D.C. Gun Laws to Court," WTOP Radio, by Darci Marchese, 7 December 2006,at http://www.wtop.com/?nid=596&sid=998725.

    Cato Press Release re: Parker v. DC at http://www.cato.org/new/02-03/02-10-03r.html

    United States Attorney General Opinion, 24 August 2004 (declaring that "[t]he Second Amendment secures a right of individuals generally, not a right of States or a right restricted to persons serving in militias") at http://www.usdoj.gov/olc/secondamendment2.htm.

    United States v. Emerson 270 F.2d 2003 (5th Cir. 2001)(holding that the Second Amendment provides an individual right to possess guns).

    "The Embarrassing Second Amendment," by
    Sanford Levinson," 99 Yale L.J. 637-659 (1989)(arguing that it's time thelegal academytake the Second Amendment seriously) at
    http://www.firearmsandliberty.com/embar.html.


    The US Supreme Court has consistently supported the Second Amendment as providing an individual right of the people to posses guns:

    Dred Scott v. Sandford, 60 U.S. 393 (1857)(implying that the Second Amendment provided an individual right to possess guns by holding that former slaves could not be citizens of the United States in part because any other result "would give to persons of the African American race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went" [emphasis added]).

    United States v. Cruikshank, 92 U.S. 542 (1876)(noting that the right of the people to keep and bear arms "is not a right granted by the Constitution . . . [n]either is it in any manner dependent upon that instrument for its existence" but held that the Second Amendment provided the federal courtsno power to punish Klansmeninterference in blacks' gun rights and that blacks must"look for their protection against any violation by their fellow-citizens" of their right to keep and bear arms to the police power of the state).

    Presser v. Illinois, 116 U.S. 252 (1886)(stating that "the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, as so to deprive the United States of their rightful resource for maintaining the public security and disable the people from performing their duty to the general government").

    Miller v. Texas, 153 U.S. 535 (1894)(holding that the Second Amendment was not incorporated via the Fourteenth Amendment to limit state police powers). NOTE: The US Supreme Court did not begin incorporating federal Bill of Rights provisions to apply to states until 1925. See Gitlow v. New York, 268 U.S. 652 (1925)(holding that the First Amendment limits the reach of state police powers). To this day, Justice Thomas disagrees with Gitlow, presenting a problem for gun rights advocates seeking incorporation of the Second Amendment to limit state police powers.

    United States v. Miller, 307 U.S. 174 (1939)(holding that the Second Amendment provides an individual right to possess guns which are: (1) In common use,& (2) Suitable for use as a member of the militia if called upon to serve in the common defense; also holding that the term "militia" within the meaning of the Second Amendment consisted of "all males physically capable of acting in concert for the common defense" ).

    Lewis v. United States, 445 U.S. 95 (1980)(summarizing Miller as standing for the proposition thatthe Second Amendment guarantees do not extend beyond weapons bearing "some reasonable relationship to the preservation or efficiency of a well-regulated militia" and upholding a federal law prohibiting possession of firearms by convicted felons as historically consistent with the loss of numerous fundamental rights of citizenship -- including the right to vote, hold office, and serve on juries."

    United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)(unanimously holding that themeaning of the term "the people" in the in the Second Amendment had the same meaning as in the Preamble to the Constitution and in the First, Fourth, and Ninth Amendments, i.e., that "the people" includes not just US citizens but also "[a]liens are entitled to constitutional protections when they have come within territory of the United States and develop substantial connections with this country").

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    Mike wrote:
    Judge Griffith also seemed a bit incredulous at the DC position that the Second Amendment is a complete nullity in modern times in the District.
    Did the DC counsel ACTUALLY say this to the bench?????



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    We'll see if the 'moderators' will post the comment which I took the trouble of registering in order to post...

    molonlabetn

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    I edited my comment above with the now issued press release.

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    read this out of another Wapo article,

    "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?""

    Is it just me, or am I seeing two justices debate the possibility of using judicial review to amend the constitution?

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    No, the judges play devils' advocates with each counsel - look at the question - it was softball - a perfect pitch for Gura.

  8. #8
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    ok, im cool with that. makes sense since it's only a snippet out of the paper.

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    "Incredulously, Kim, a manappearing of Asian descent, said NO!"


    Mr. Kim seems to be one slippery fish. I hope he gets his cuppance. In either case, this is quite intresting


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    Let's hit this poll!

    http://www.battlecreekenquirer.com/a....dll/frontpage- mid way down page.

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    I cast mine.

    molonlabetn
    The right to bear arms should apply to:






    89.5%

    All people




    10.5%

    Only a well-regulated militia

    Total Votes: 228

  12. #12
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    I did my duty, too. this is as of 10:30am EST.

    The right to bear arms should apply to:
    91.2% -- All people

    8.8% -- Only a well-regulated militia

    Total Votes: 285

  13. #13
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    still at 91.2% for the freedom lover's, 295 votes
    "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." - Thomas Jefferson

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    Mike wrote:
    Let's hit this poll!

    http://www.battlecreekenquirer.com/a....dll/frontpage- mid way down page.
    92.4% All people
    7.6% Only a militia
    536 Total votes

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    Pick up (or read online)a copyof this Sunday's (12/10/06) Washington Times. They are going to publish the Letter To the Editor that I sent in regarding D.C.'s attemptto interpretthe2nd Amendment as only applying to a "well regulated militia".

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    Today's Poll

    The right to bear arms should apply to:






    92.6%

    All people




    7.4%

    Only a well-regulated militia

    Total Votes: 564
    I like that trend!



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    Before everyone goes off, "half-cocked," as it were, this appeals hearing will decide only two issues. Now, IANAL, but here's my take on this case and the issues involved:

    1. The issue of standing and which of the plaintiffs have it.
    2. Whether or not the 2A protects an individual right.

    Now, if none of the plaintiffs are granted standing, then the hearing stops dead, right there (affirming the lower court ruling). Question #2 need not be answered.

    There is a big problem here, with the "standing" issue. If the Circuit Court denies standing, it would then appear that no one will be able to bring to the Courts a suit for relief, without suffering actual prosecution and conviction. This would in itself negate a portion of our 1A rights of petition.

    There is a history within the Federal Courts to restrict standing only to those parties that have suffered actual harm. Such a decision by the D.C. Circuit (arguably the second highest court in the land) would put a nail in the coffin for those that would be prosecuted under questionable laws. One would have to be actually prosecuted, convicted and possibly imprisoned before standing would be allowed to actually sue for relief.

    That's the really bad news.

    The good news is that if standing is given, then the Court would proceed to answer question #2.

    If the Court finds that the 2A recognizes an individual right, then the Court will send it back to the Trial Court for reconsideration, consistant with the Circuit Courts opinion.

    The Court will not rule on the scope of the 2A right, regardless. It will however, open the door to future ligation in that regard. That's a good thing.

    What is hoped for is that not only that standing will be given, but that the 2A protects an individual right.

    Over and above what happens after this, to the plaintiffs, will be the fact that both the 5th Circuit and the D.C. Circuit will have ruled that the 2A protects an individual right. Tha creates a split in the Circuits that will have to be resolved, sooner or later. We will have come closer to forcing the Supreme Court to resolve the split. This will come about if any of the other Circuits decide to shift their thinking and further split the Circuits.


    Should the D.C. Circuit rule that the 2A protects something other than an individual right, all bets are off. However, just judging from the accounts of the oral arguments, D.C. is on shakey grounds with the Court as regards the meaning of the 2A.

    Yet we still have to get past the issue of standing, regardless. I am hopefully optimistic.

  18. #18
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    Allen wrote:
    Over and above what happens after this, to the plaintiffs, will be the fact that both the 5th Circuit and the D.C. Circuit will have ruled that the 2A protects an individual right. Tha creates a split in the Circuits that will have to be resolved, sooner or later. We will have come closer to forcing the Supreme Court to resolve the split. This will come about if any of the other Circuits decide to shift their thinking and further split the Circuits.
    Allen, Justice Scalia told me that there already is a Circuit Court split - I agree with your implication that if the DC Circuit joins the 5th Circuit, that the split becomes "sharper" and the Supreme Court is more likely to grant certiorari.

    But what exactly is the nature of the split? I believe that the split is merely over whether the Second Amendment provides an individual right from federal infringement, agreed?

    I do not believe that any federal Circuit has ever ruled that the Second Amendment provides an individual right from state infringement.

    If this ever get's litigated by the Supreme Court, just remember, Justice Thomas is on record as generally opposing the incorporation of the Bill of Rights as restricting the exercise of state police powers.

    But restriction of 2A rights at the state level has at least some basis in racism, says many commentators. Could a state based 2A case bring Thomas out of the closet on the issue of incorporation??

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    Mike wrote:

    I do not believe that any federal Circuit has ever ruled that the Second Amendment provides an individual right from state infringement.
    They may have not ruled so, but I thought the 14th amendment extends the protections of the bill of rights down to the state level. Also, i'm courious what the DC constitution says. Most of the state constitutions i know incorperate the bill of rights

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    Brigdh wrote:
    Mike wrote:
    I do not believe that any federal Circuit has ever ruled that the Second Amendment provides an individual right from state infringement.
    They may have not ruled so, but I thought the 14th amendment extends the protections of the bill of rights down to the state level.
    No - see discussion of Gitlow v. New York above. Incorporation proceeds piecemeal by judicial decree (i.e., judge made law) and is still controversial in some circles, i.e., Justice Thomas.

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    Brigdh wrote:
    Mike wrote:
    I do not believe that any federal Circuit has ever ruled that the Second Amendment provides an individual right from state infringement.
    Also, i'm courious what the DC constitution says. Most of the state constitutions i know incorperate the bill of rights
    OK, tell us what the DC Constitution says and also cite with link at least one state whose constitution incorporates the Federal Bill of Rights?

    You almost got a penalty flag on the comment above - the ettiquette on board requires posters to research conclusions of law and provide authorities when posting.

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    Thanks for the information on the 14th, very bit of knowledge is valuable

    As for the state constitutions, I attempted to find the DC "state" constitution. I haven't been able to as of yet, so I was asking if anyone might have either a direct link or general knowledge of it. As far as other state constitutions, Wisconsin's contains the bill of rights in a paraphrased form among other articles. Alaska contains the entire BoR in it's first article of the state constitution. Illinois is in the same situation as Alaska. Montana is the same, only the BoR is in the second article.

    Seeing as how the Federal Second Amendment is also copied into each of those example states' constitutions, I was wondering if DC had the same because i couldn't find out in my own research.

    As for a link, here is a handy page that is generally up to date on where one can find "state" constitutions
    http://www.thegreenpapers.com/slg/links.phtml


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    Penalty flag?

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    Brigdh wrote:
    As for the state constitutions, I attempted to find the DC "state" constitution. I haven't been able to as of yet, so I was asking if anyone might have either a direct link or general knowledge of it. As far as other state constitutions, Wisconsin's contains the bill of rights in a paraphrased form among other articles. Alaska contains the entire BoR in it's first article of the state constitution. Illinois is in the same situation as Alaska. Montana is the same, only the BoR is in the second article.

    Seeing as how the Federal Second Amendment is also copied into each of those example states' constitutions, I was wondering if DC had the same because i couldn't find out in my own research.
    But the question is, does any state "incorporate" or "incorporate by reference" the federal bill of rights and the jurisprudence interpretting said rights?

    I do not think so - just copying the text into the state constitution does not incorporate those rights - each state's Supreme Court is the sole arbiter of what those state rightsd mean.

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    Collier4385 wrote:
    Penalty flag?
    A poster on this board created it to "throw" when someone rambles on about a rule of law without citing an authority to support their prtoposition -I can't seem to find this "flag" right now.

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