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Thread: 'Heller', Round 2, ding, 'New D.C. gun laws upheld', Lyle Dessiston, SCOTUSblog.com

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    http://www.scotusblog.com/2010/03/ne...ld/#more-17880

    Lyle Denniston | Friday, March 26th, 2010 2:44 pm

    A federal judge in Washington, applying the Supreme Court’s 2008 decision creating a constitutional right to have a gun, ruled on Friday that three new gun control restrictions in the Nation’s capital city survive a Second Amendment challenge. In the ruling by U.S. District Judge Ricardo M. Urbina, the District of Columbia government’s laws requiring that guns be registered and banning assault weapons and large-capacity bullet-feeding devices are valid. The case is Heller, et al., v. District of Columbia (District Court docket 08-1289); the opinion can be found here. (The lead individual in the case, government security guard Dick Anthony Heller, is the same District resident who won the Supreme Court case with the same title in 2008.)

    Such gun control laws, the judge ruled, are to be subjected to constitutional analysis using an “intermediate” level of review — that is, a challenged law will be upheld if it is “substantially related to an important governmental interest.” Courts around the country have differed on what level of review should apply to gun regulation, and that issue thus is a likely one for future Supreme Court analysis. The Justices did not lay down a standard in 2008, other than to say it would take more than simple “reasonable” justification to satisfy the Second Amendment.

    The Supreme Court two years ago struck down a District government ban on handguns and a separate requirement that guns in the home be kept locked or disassembled. In doing so, the Court for the first time read the Second Amendment as protecting an individual’s personal right to have a gun for private use, at least for immediate self-defense in the home. The Court indicated at the time, however, that some forms of gun regulation — not spelled out in full — might still be valid under that Amendment. The District government followed up the ruling with City Council adoption of new restrictions that officials thought the Heller decision would allow. On Friday, Judge Urbina agreed.

    In deciding how to weigh challenges in the new District laws, the judge noted that the Supreme Court had not placed gun rights in the category that gets the greatest constitutional protection — that is, rights that are deemed to be “fundamental.” The judge remarked: “If the Supreme Court had wanted to declare the Second Amendment a fundamental right, it would have done so explicitly.” Moreover, he added, declaring gun rights to be fundamental could not be squared with the Supreme Court’s remarks that some forms of regulation would remain valid.

    Following are the three District laws, described in summary, and Judge Urbina’s rulings on them:

    First, gun registration.
    The new District law requires that all guns be registered. The person seeking to do so must submit fingerprints and two photographs, show knowledge of local gun laws, have visual capacity sufficient to get a vehicle driver’s license, prove completion of a gun-use or safety course, show how the gun will be used and where it will be kept, and notify District police if the gun is stolen, transferred, sold, lost of destroyed. For pistols, each weapon must be submitted for a ballistic ID test, for which a fee is attached, and no more than one pistol a month may be registered. Registration lasts for three years, but can be renewed.

    The judge said that these regulations do implicate the Second Amendment right to defend one’s self in the home, but that they are justified as ways for local officials to monitor gun use, track guns used in crimes, and allow prosecution for failing to register. Those goals of public safety, the opinion said, will be served by the registration obligations. “Public safety is a quintessential matter of public regulation,” Urbina wrote.

    Second, assault weapon ban.
    The new law provides a list of what it considers to be assault weapons, including pistols, rifles and shotguns, or guns that have military-style features such as use of a magazine that can be detached.

    The judge concluded that these weapons are not in common use, are not possessed by law-abiding citizens as a general rule, and are dangerous. Thus, the judge ruled, they are outside the Second Amendment’s protection. Thus, Urbina said, there was no need to weigh their constitutionality. If intermediate scrutiny were applied, however, the judge said the ban would satisfy that standard because the ban is keyed to public safety.

    Third, large capacity magazines ban.
    The new law flatly bans a magazine, belt, drum, feed strip, or similar device that can accept more than 10 bullets.

    Just as with the assault weapon ban, Judge Urbina ruled that these restrictions are outside the scope of the Second Amendment but, in any event, would satisfy intermediate scrutiny for public safety reasons.

    Judge Urbina went on to reject one added challenge to the new local laws: a claim that, because the restrictions go further than those that have been upheld elsewhere, they go beyond the powers of the District’s local government.

    Technically, the judge decided the challenge by ruling on competing motions for a ruling without a full trial — that is, summary judgment — because the facts were not in dispute. Joining Dick Anthony Heller in the challenge were three other District residents, Absalom Jordan, William Carter and Mark Snyder.

    The challengers have the option of appealing the ruling to the D.C. Circuit Court and eventually to the Supreme Court. One or both of those maneuvers seems likely, given the breadth of the new restrictions and the fervor of the challengers.


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    The second ammendment is not only for self protection in the home, and its not a hunting right. Go figure, DC is NOT America anymore.

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    And what country can preserve its liberties, if its rulers are not warned from time to time that this people preserve the spirit of resistance? Let them take arms....The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants" (Thomas Jefferson in a letter to William S. Smith in 1787. Taken from Jefferson, On Democracy 20, S. Padover ed., 1939)

    The strongest reason for people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government." -- (Thomas Jefferson)

    To prohibit a citizen from wearing or carrying a war arm . . . is an unwarranted restriction upon the constitutional right to keep and bear arms. If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of constitutional privilege." [Wilson v. State, 33 Ark. 557, at 560, 34 Am. Rep. 52, at 54 (1878)]

    Added at edit
    `The right of the people to keep and bear arms shall not be infringed.' The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the milita, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right." [Nunn vs. State, 1 Ga. (1 Kel.) 243, at 251 (1846)]

    And we see it yet again, Tyrants surround us.
    Laws that forbid the carrying of arms... disarm only those who are neither inclined nor determined to commit crimes... Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man. Thomas Jefferson

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    The Judge obviously never actually read the Heller opinion:

    "By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122-134. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U.S. 706, 715, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139-140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self preservation,”
    id., at 139, and “the right of having and using arms for self-preservation and defence,”id., at 140; see also 3 id., at 2-4 (1768).

    "District of Columbia v. Heller, 128 S. Ct. 2783, 2798 (2008).

    That wasn't so hard to find, now was it judge. Arms were fundamental for Englishmen and therefore those living in British North America.

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    Could not have said it better myself!! we have now wannabe tyrants in office.

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    Virginiaplanter wrote:
    The Judge obviously never actually read the Heller opinion:

    "By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122-134. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U.S. 706, 715, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139-140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self preservation,”
    id., at 139, and “the right of having and using arms for self-preservation and defence,”id., at 140; see also 3 id., at 2-4 (1768).

    "District of Columbia v. Heller, 128 S. Ct. 2783, 2798 (2008).

    That wasn't so hard to find, now was it judge. Arms were fundamental for Englishmen and therefore those living in British North America.
    He noticed these passages, but said that they fell short of finding that the right is Fundamental under our constitution.

    Needless to say, Judge Urbina will not be the last word on what the Supremes meant by these passages.


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    It sure would be nice to be 18 so I could watch this play out more. This in going to take forever.

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    wethepeople wrote:
    The second ammendment is not only for self protection in the home, and its not a hunting right. Go figure, DC is NOT America anymore.
    After serving my country more than 20 years, it's enough to make this veteran want to puke.

    Here's a thought: "All those who wish to serve our country in any public office, local, county, state, or federal, must serve a minimum of 2 years in the regular armed forces of the U. S. Military."

    Yeah, I know it wouldn't fly. Might make 'em get a clue as to what it means when they take their oath of office to "support and defend the Constitution against all enemies foreign and domestic," though.

    As it is, they're clueless that they have become the enemies with their ridiculous, anti-Constitutional decisions.
    The First protects the Second, and the Second protects the First. Together, they protect the rest of our Bill of Rights and our United States Constitution, and help We the People protect ourselves in the spirit of our Declaration of Independence.

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    AMEN !!!!!! BTW, thanks for your service!

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    Campaign Veteran deepdiver's Avatar
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    The new law provides a list of what it considers to be assault weapons, including pistols, rifles and shotguns, or guns that have military-style features such as use of a magazine that can be detached.

    The judge concluded that these weapons are not in common use, are not possessed by law-abiding citizens as a general rule, and are dangerous. Thus, the judge ruled, they are outside the Second Amendment’s protection. Thus, Urbina said, there was no need to weigh their constitutionality. If intermediate scrutiny were applied, however, the judge said the ban would satisfy that standard because the ban is keyed to public safety.
    Um, yeah. I don't know for sure what percentage of firearms commonly available for sale to the general public meet these nonsensical, mostly cosmetic, "assault weapons" criteria, but it has to be a very healthy percentage.
    Bob Owens @ Bearing Arms (paraphrased): "These people aren't against violence; they're very much in favor of violence. They're against armed resistance."

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    The 2nd amendment says" keep and bear arms" not keep and bear the arms that we the Gov decide you can have.The left keeps talking about a level playing field, well heres a chance to put your money where your mouth is.

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    since9 wrote:
    After serving my country more than 20 years, it's enough to make this veteran want to puke.
    As an Army Infantry Vet myself (6 years, honorable, medical), i 100% agree with you. The 2nd Amendment to the Constitution of the United States is the kingpin to our freedoms. Without having defended those freedoms, many in office only presume to know the magnitude of those liberties. Sitting on their cushy little pillow, coffee, creme, and pastries, they will never know the sound soil and sandmakes under the foot, the wetness of rainand sweat, or what it means to sleep unblanketed, with a rifle's sling wrapped in your arm, as you await your turn for midnight guard. They will never see the break of light that dawnsa fighter's long slow march towards a free society, or see the sacrifice, often of ones own soul, that swings the pendulum of liberty to and fro. To this i say Nay! They have not tasted the bitter sweet fruits of freedom's true toll.

    Thank you for the 20 years, that's veryrespectable indeed.

    Bat

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    The Enclave is looking for patriotic motorcycle riders in Washington State who support liberty and freedom for all. ~ Check us out!
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    Regular Member ooghost1oo's Avatar
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    Just goes to show that liberty suffers when the good guy play by the rules and the bad guys don't.

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