Fed Court Uses 2nd Amend to Strike Down D.C. gun law
Sat Mar 10, 2007 at 07:51:14 AM PDT
Yesterday, the U.S. Court of Appeals for the D.C. Circuit struck down several provisions of the gun control laws of the District of Columbia on the grounds that these laws violate the Second Amendment. This sets up a probable appeal to the U.S. Supreme Court, and quite possibly a politically significant fight in about a year before the Supreme Court about the meaning of the Second Amendment's right to keep and bear arms -- right in the midst of a presidential campaign.
The U.S. Court of Appeals for the D.C. Circuit is one of twelve general federal courts of appeals, which are above the 94 federal District (trial) Courts, and below the Supreme Court. That is, these courts review decisions from the District Courts and their decisions in turn can be reviewed by the Supreme Court. Although many people may not appreciate this, the federal courts of appeals have never struck down a gun control law on the grounds that the Second Amendment's reference to a right to keep and bear arms protects an individual right of ordinary citizens to possess firearms. In fact, 9 of the 12 courts of appeals have specifically said that the Constitution's Second Amendment protects only a "collective right" of the states to protect their state militias from being disarmed by the federal government. The entire Second Amendment states: "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." In other words, these 9 courts of appeals have said that there is not individual right to bear arms in the Second Amendment that can be used by an ordinary citizen as a defense to a prosecution for violating a gun control law. A 10th of the 12 courts of appeals decided in 2001 that the Second Amendment does protect an individual right to keep and bear arms, but it upheld the law at issue in that case (a domestic violence restraining order which included a ban on the possession of firearms) as a reasonable regulation consistent with the basic Second Amendment right. The only relevant U.S. Supreme Court case was in 1939, in which the Court upheld the conviction for possession of a sawed-off shotgun on the grounds that it was not the sort of weapon that had any connection to service in a state militia.
Yesterday the D.C. Circuit Court issued a decision in Parker v. District of Columbia, 04-7041, a case in which several residents of the District of Columbia challenged the District's strict restrictions on handgun possession. Basically, the residents want to possess handguns or shotguns in their homes for self-defense. They filed suit against the District and lost in the trial court (which is the District Court). They then appealed, and yesterday they won their appeal. The D.C. Circuit struck down several provisions of the District's firearms laws on the grounds that they violated the Second Amendment, which it interpreted to guarantee an individual citizen's right to keep and bear arms. This court did acknowledge that this right is subject to reasonable restriction, and gave as examples restrictions on the carrying of concealed weapons, carrying weapons while intoxicated, and carrying weapons into certain places such as churches and polling places.
Now that there is a direct conflict among the several federal courts of appeals, it is likely that the U.S. Supreme Court, which has not taken a case on the meaning of the Second Amendment since the 1939 decision, will probably accept this case for review sometime later this year, and it could be scheduled for argument in the winter or spring of next year. This could put the issue smack in the middle of the presidential campaign.
Thoughts, Kossacks?
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