A post by Maynard
In a recent post, I discussed in detail the debate over what the Second Amendment means to individual citizens. The summary, from a lawyer’s point of view, is that we don’t know for sure, because an absolute legal ruling has never been issued. Much of the Left claims that the Second Amendment means nothing. A single bad ruling from the Supreme Court could effectively codify their despotic vision into law, setting the stage for seizing private weapons.
This report in today’s news could be an important milestone. In a 2-1 decision, a U.S. Appeals Court for the District of Columbia has overturned the DC gun ban. The court ruled that the right to bear arms is “not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued intermittent enrollment in the militia.”
In other words, in the opinion of this Court, the Second Amendment acknowledges YOUR right to be armed. You may think this is obvious and that any other opinion would have been a gross offence against common sense and decency. But, legally speaking, the question had been undecided.
This ruling does NOT end the issue. This is a regional court ruling. Only a Supreme Court ruling would settle the legal argument for the nation.
(If the Supreme Court were to favor the Leftist despots, we would probably immediately go to work on a new Amendment to set things right. The wording I would suggest would be: “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….AND THIS TIME WE MEAN IT!” But let’s hope we never have to face that contingency.)
So the next question is, will this ruling be appealed to the Supreme Court? If so, it will be a very important case to watch. If not, it will remain a positive precedent, but not necessarily a definitive one.
“This ruling does NOT end the issue. This is a regional court ruling. Only a Supreme Court ruling would settle the legal argument for the nation.”
Yes, but this does make the chances of the Supreme Court hearing a Second Amendment case (possibly this case itself) far more likely, because there’s now a clear conflict among the lower federal appellate courts, with the Fifth Circuit in Emerson and now the DC Circuit taking an individual-rights view and at least the Ninth Circuit and possibly others taking the so-called collective rights position.
“So the next question is, will this ruling be appealed to the Supreme Court?”
It surely will be. The question is really not whether it will be appealed, but whether the Court will hear the appeal, which is discretionary. If I had to guess, I’d say it will, but I think there are also possiblly still reasons why the Supremes might still say the issues aren’t quite ripe enough for them to step in.
The main reason I say this is that there’s another question potentially overhanging the extent to which this case decides the issues applicable to the rest of the country, and which the DC Circuit by its nature really couldn’t address. That’s the question of incorporation: namely, regardless of whether a court takes the individual-rights or collective rights approach to the Second Amendment, does the Second Amendment apply against the states at all, or only against the federal government? Current case law, the doctrine of selective incorporation has found many things in the Bill of Rights are, but some things specifically are NOT, binding on the states by incorporation through the Fourteenth Amendment: the example that first comes to mind is the right to grand-jury indictment, which most states west of the Mississippi (and some east of it, like my own Florida) don’t use.
Obviously the answer doesn’t matter in this case, because the District is a federal enclave and a creation of federal law. But I think this is the most likely reason the Court might still decline to hear this appeal, thinking it would only make sense to rule on the issues when another circuit that actually has states under its jurisdiction makes a ruling.
“If so, it will be a very important case to watch. If not, it will remain a positive precedent, but not necessarily a definitive one.”
It’s still hugely important, especially because the DC Circuit is often thought of at least first among equals compared to the other federal appeals courts, the so-called “Second-Highest Court in the Land.” Its word, while not binding on anyone else, still carries a lot of weight.
“Judge Karen LeCraft Henderson dissented, saying the Second Amendment did not apply to the District of Columbia because it is not a state.”
Does this mean the Feds can shut down the Washington Post?
Thank God for Judge Silberman, a jurist who would have been on the Supreme Court long ago in a just and decent society.
Don1600, Judge Henderson’s dissent is trult, without exaggeration, one of the stupidest things I’ve ever seen a judge say or do, and that’s saying quite a lot. It’s truly as ass-backwards as possible: after all, prior to the Fourteenth Amendment, the federal Bill of Rights applied ONLY to the feds, not to the states. That’s why this was such a good case on the issue it did address, because the incorporation question wasn’t there to muddy the waters. But if the Second Amendment means anything ANYWHERE, it’s in a federal enclave like the District.
I just posted on my own site, including a link to the pdf file of the entire ruling.
http://blogresponder.blogspot.com/2007/03/2nd-amendment-vindicated-31-years-late.html
Dave J
Why does your name link to a site by Ken S?
Dave J
Never mind, saw your name down on the sidebar. But you aren’t contributing there now?
Craig, I’m still officially one of the co-bloggers at It Comes in Pints?, just have been very busy and not posting lately. I tell myself routinely that that’s about to change, and then something else comes up. But don’t tell Emily you think it’s “a blog by Ken”: long-term though we may be, the two of us are still guests on what it is still ultimately her blog.