Patterico's Pontifications

3/9/2007

Second Amendment Awakens

Filed under: Civil Liberties,General — Patterico @ 10:09 pm



Our old friend the Second Amendment awoke from a long slumber today, making an appearance in a D.C. Circuit Court of Appeals decision that states:

To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms.

I agree, though it’s unusual to hear a modern court saying it so forthrightly.

This may be headed for the Supreme Court. Stay tuned.

19 Responses to “Second Amendment Awakens”

  1. Patterico:

    I used your name in vain in my post on this D.C. Circus case: I suggested that you would be a good person to opine on the likely decision if this case goes to the USSC in early 2008, as Volokh predicts.

    You’ve just read that book on the justices; can you use that, plus your own knowledge of the Court, plus a Magic 8-Ball, to give us a good guess of how they might rule?

    My own (completely ignorant) supposition is that it will end up 4-4, with the usual suspects on each side, and Anthony Kennedy as the tie-breaker. If so, which way will he fall?

    And when he does, will he make a noise?

    Dafydd

    Dafydd (445647)

  2. It is interesting to note that Silberman suggests that Ginsberg and Souter might support some form of individual rights interpretation.

    I think you guys misinterpret Kennedy — he may misuse the liberty argument at times (Casey), but that works in this case’s favor. The justices I’d worry about here are Alito and Roberts, especially Roberts.

    Kevin Murphy (0b2493)

  3. Court rules 2nd Amendment valid…

    Appeals Court Strikes Down Washington, D.C. Handgun Ban WASHINGTON — A federal appeals court on Friday overturned the District of Columbia’s longstanding handgun ban, issuing a decision that will allow the city’s citizens to have working firearms i…

    Bill's Bites (72c8fd)

  4. I’m glad to see that a federal court is finally addressing this issue. The 2nd Amendment was the only place “the people” had a different meaning then in the rest of the constitution.

    Of course, the gun grabbers will break out the “living document” arguement, add the presidental election is already started, and a quote comes to me: “In that place there will be weeping and gnashing of teeth.”

    Gun control has always be about control. Racism is its roots. The “Nanny State” has taken up the banner.

    Gerald (3173fa)

  5. Remember McCain-Feingold: it is still possible to eliminate the exercise of a right without actually violating that right, sayeth the Supremes. All the pro-banners have to do is to claim an “overriding good for the community” and they win the case.
    In other words, even if the Supremes suddenly reverse close to 100 years of cowardice and incompetence tradition and grant cert in this case, and even if they actually follow the clear words of the Constitution in this case… we’re still a long way from out of the woods.

    DaveP. (c02c31)

  6. I’m confused – why is this a big deal? Has any absolute gun control law survived a law suit (aside from those that involved schools) ?

    OT – question for lawyers:
    When a jury obviously get the facts wrong (due to prosecution in the ‘Julie Amero’ case) is this appealable? Can the trial judge abdicate the decision without reversing it so the trial can be redone without double jeopardy ?

    seePea (38fcb2)

  7. Just what DC needs – more guns.

    The Liberal Avenger (b8c7e2)

  8. Not really. If there’s a right or wrong number guns, they probably have about the right number, they’re just in the wrong hands. What DC does need more of is freedom, and Friday’s ruling is a quantum leap in that direction.

    Xrlq (3f5757)

  9. My good friend The Liberal Avenger wrote:

    Just what DC needs – more guns.

    Well, gosh, LA, it was virtually illegal to own a handgun in our nation’s capital, but for some strange reason, people living there had them. Is it possible, just possible, that people who don’t obey the laws when it comes to things like shooting people might also be somewhat disinclined to obey the laws when it comes to the possession and ownership of handguns?

    Many (not all) of our liberal friends, who are vehement supporters of our constititional rights when it comes to the First Amendment (and I suspect that was where LA was going with his “Why do you hate America” snark on the “Hypocirsy” thread) seem to have far less desire to support our constitutional rights when it comes to the Second Amendment. Not sure why that is.

    The urge for gun control comes from those who want to Do Something about violent crime, but really don’t know what to do. So they just shunt aside the Second Amendment (it’s easy to think a constitutional right isn’t all that important if you choose not to exercise it). I suppose that they’d at least have an argument on their side if gun control was actually shown to work in reducing violent crime — but that hasn’t been the case, either.

    And the typical liberal response? Well, it hasn’t worked because we don’t have enough gun control!

    Our big shot host had the answer, though somewhat obliquely, above, in his thread about not checking the immigration background of people who came into contact with the criminal justice system. The sad fact is that we treat too many criminals like undersized fish, with a catch-and-release program. We need to charge criminals with every offense they commit, and lock them up for the maximum sentence allowed by the law.

    Dana (556f76)

  10. First, dearest Dana, my “snark” to Patterico on the “Hipocirsy” thread wasn’t ill-intentioned. Sir P may be many things, but he most certainly isn’t a “hypocirt.”

    I’m not going to argue the Second Amendment with you because we both know that no position on it is a slam dunk. There’s no denying that it clearly allows for the ownership of guns. I realize that that is what it says. One might ask, however, if the well-regulated militia isn’t the National Guard. Many liberals like me – who grew up using and enjoying guns, btw – wonder what the Founding Fathers would have thought about 9mm automatic handguns with ample clips way back then in the Olden Days. But that’s neither here nor there.

    I think you Second Amendment fetishists go astray when you fail to heed to warnings of law enforcement. The mayor of DC and the DC police department didn’t want the ban on handguns overturned. Is this because they are sinister liberals World Government advocates? (I think the mayor may be a NEGRO, afterall) Or is it because there are legitimate, real and pressing public safety concerns vis-a-vis an armed urban population?

    You’re kidding yourselves if you think that easy legal access to guns means people are better able to protect themselves from violent crime. Our nation is awash in guns – both legal and illegal. What percentage of injuries or deaths from gunfire are the product of law abiding citizens protecting themselves from crime? 2% perhaps? Less?

    The Liberal Avenger (b8c7e2)

  11. LA wrote:

    I think you Second Amendment fetishists go astray when you fail to heed to warnings of law enforcement. The mayor of DC and the DC police department didn’t want the ban on handguns overturned. Is this because they are sinister liberals World Government advocates? (I think the mayor may be a NEGRO, afterall) Or is it because there are legitimate, real and pressing public safety concerns vis-a-vis an armed urban population?

    Oh, I’m certain that the mayor and police department would prefer that everyone else were unarmed; that would probably make their jobs easier. But that isn’t what the constitution allows, and in all of the days that the constitution was ignored in this, the gun control laws didn’t actually do anything to disarm the criminals.

    You’re kidding yourselves if you think that easy legal access to guns means people are better able to protect themselves from violent crime. Our nation is awash in guns – both legal and illegal. What percentage of injuries or deaths from gunfire are the product of law abiding citizens protecting themselves from crime? 2% perhaps? Less?

    That isn’t an argument that I have made, LA. The argument I have made is that the government has no legal authority to prohibit law-abiding citizens from owning firearms, regardless of how frequently such ownership actually prevents crime.

    What would the founding fathers have thought about “9mm automatic handguns with ample clips?” I doubt that the founding fathers had any idea that our society would have broken down in the ways that it has; I’m also pretty certain that the founding fathers might have had very different views from you concerning the meaning of the First Amendment!

    But, if you wish to limit the Second Amendment to what the founding fathers thought, and that it applies only to the militia, I guess that I can accept the notion that they only meant for able bodied white men older than about 16 to own firearms! 🙂

    Dana (556f76)

  12. The spam filter ate my earlier comment in rebuttal to LA. I guess that it does not like links that reference “sexual behaviors” and “kill”. If anybody cares, they can google “jama causes of death” to see that obesity or cigarette smoking are about fourteen more times likely to kill you than guns and “sexual behaviors” about two-thirds as likely (20,000 vs. 29,000.) And let’s not mention all the rest of our population whom guns don’t kill.

    nk (48b04e)

  13. And you know how the liberal news media react to issues like this involving guns like the chicken with its head cut off running around blindly acting in the most stupid way and meanwhile all those liberals with climb on their soap box and say THERE WILL BE RIVERS OF BLOOD DOWN PENNSYLVANIA AVE,PILES OF CORPES IN OUR NATIONS CAPITAL AS CARNAGE HAPPENS liberals can be such a bunch of blabbering jerks

    krazy kagu (f63577)

  14. There’s no denying that it clearly allows for the ownership of guns.

    Washington, D.C. did indeed deny that, first by passing their blatantly unconstitutional gun law, and then by defending it against a Second Amendment challenge on the theory that either handguns aren’t really “arms,” or DC residents aren’t really “people.”

    One might ask, however, if the well-regulated militia isn’t the National Guard.

    Ask all you want, but the clear answer is no, and it doesn’t matter anyway. RTFA, and you’ll see that the right in question belongs to the people, not to any militia, well-regulated or otherwise.

    Many liberals like me – who grew up using and enjoying guns, btw – wonder what the Founding Fathers would have thought about 9mm automatic handguns with ample clips way back then in the Olden Days.

    9mm? Oh my. I’m sure the Founding Fathers were every bit as terrified of the metric system as the average American is today, but the notion that an inventor like Benjamin Franklin would be aghast over the possibility that better guns might be available 2 centuries later is laughable. Guns haven’t evolved nearly as much during this period as communications media have, so if you’re going to play the “it wasn’t invented in 1791 so it’s not protected today” card, you’d get a lot more mileage out of an argument that the First Amendment doesn’t apply to TV, radio or the Internet.

    I think you Second Amendment fetishists

    Nice name for people who think the Constitution should be obeyed rather than ignored. I think your opinions are horribly uninformed, and that the collective IQ of the blogosphere drops a few points every time you weigh in on a contentious topic like this one, yet I would oppose any law that infringed on your right to say what you want. Does that make me a First Amendment fetishist?

    …go astray when you fail to heed to warnings of law enforcement. The mayor of DC and the DC police department didn’t want the ban on handguns overturned. Is this because they are sinister liberals World Government advocates? (I think the mayor may be a NEGRO, afterall) Or is it because there are legitimate, real and pressing public safety concerns vis-a-vis an armed urban population?

    It’s because they, like you, are data-proof ideologues. The mayor is elected by a far-left population, and the police chief answers to him. Don’t expect either of them to stick their necks out on behalf of individual liberties few of their constituents even want, as doing so would be political suicide. An anonymous poll of rank-and-file cops wouldn’t be dispositive, either, but at least that would mean something. The fact that the mayor and the police chief of a hard-left city support a hard-left agenda, on guns or any other topic, does not.

    You’re kidding yourselves if you think that easy legal access to guns means people are better able to protect themselves from violent crime.

    You’re living under a rock if you deny that obvious fact. Do you really think you can defend yourself against a violent predator as effectively with your bare hands as you could with a firearm? If so, maybe you should advocate disarming the police, too. After all, if guns really weren’t effective in controlling violent criminals, then what the hell do the cops need these things for?

    Our nation is awash in guns – both legal and illegal.

    D.C. is awash in illegal guns only. And you really wonder why criminal uses of firearms outnumber defensive ones in that town? For years the NRA has said that when guns are outlawed, only outlaws will have guns. DC proves it, and the results should surprise no one.

    What percentage of injuries or deaths from gunfire are the product of law abiding citizens protecting themselves from crime? 2% perhaps? Less?

    Don’t know, don’t care; it’s a stupid question. When owning a gun for self-defense, your objective is to prevent injury to yourself and your family members, not to cause injury to anyone else. Of the 1,000,000+ successful defensive uses of guns in this country every year, an overwhelming majority require nothing more than brandishing, resulting in no injuries to anyone. And you think that’s a bad thing?!

    Xrlq (3f5757)

  15. Xrlq – Thank you. Well said.

    Another Drew (8018ee)

  16. I wouldn’t be too cocksure about this. I agree that the ruling is the right one, and that the Standard Model (as I think it’s called) of 2nd jurisprudence makes the most sense. (IANAL, but I’m in agreement here with such worthies as Pat and Jeralyn Merritt, so perhaps this is one of the rare cases where the law actually makes, or ought to make, sense to lay people).

    But it’s most disturbing to think about what’s ahead. There is no way the City won’t take it to an en banc appeal, and how will the DC Circuit rule? That will be the settled law, because I’m *really* out of understanding with the courts if a (hypothetical at the moment, but certainly plausible and maybe likely) reversal would be accepted for review by the USSC.

    So the Liberal Avenger may get what he wants (support for gun bans), and what he certainly doesn’t want, but which follows inexorably from such, astronomical gun crime levels.

    Maybe I’ll say a few things about my brief stint as a guest instructor at the Jamaica Police Academy: a place with gun laws the Brady Center would (er) kill for, and a place that manufactures no guns, and is an island with only a few harbors and exactly seven airports.

    Yet the police and even the Army patrol the streets in section force, with automatic weapons. They shoot it out frequently with machine-gun-armed gangs; cops are shot dead so routinely that they don’t bother to lower the flags to half-staff when it happens; and special Gun Courts take a somewhat relaxed view of civil liberties for those miscreants who survive shoot-outs with the cops. (Oops… alleged, alleged, alleged miscreants. Any innocent ones, of course, have their liberties as diminished as the guilty).

    You might think of Jamaica as tourist country. It is. To a point. Most of the tourists now stay inside fenced and guarded “all-inclusive” resorts.

    The cops were highly professional; Jamaicans are lucky to have mostly decent men guarding them. And despite the alarm with which an American views the gun-court compounds (one stop razor-wire enclosures — go in one end as a suspect and come out the other when your time is served or you’re transferred to a pen), the courts still seem to function. But people aren’t safe, and banning guns has not magically made guns disappear. Instead, criminals can make them appear by mechanisms which seem like magic — black magic — to the law-abiding, but are probably grimly routine to any cop or lawyer in the world.

    If you could magically make guns vanish worldwide, gun violence would stop, but magic is a pretty lousy basis for public policy. We have to live in the physical world, my friends.

    Kevin R.C. 'Hognose' O'Brien (d1d13d)

  17. Xlrq,

    You may wish to see what two of the attorneys involved in the matter (for the plaintiffs) wrote about the case: http://www.washtimes.com/commentary/20030722-093717-6859r.htm

    Rostrum (39fc86)

  18. […] Second Amendment Awakens Our old friend the Second Amendment awoke from a long slumber today, making an appearance in a D.C. Circuit Court of Appeals decision that states: […]

    2nd Amendment Blogburst at Traction Control (acd9fb)


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