March 9, 2007
Court Calls District Gun Laws Unconstitutional
The District's restrictive gun laws have long been hated by Second Amendment activists everywhere, who have tried pretty much everything, including near-annual congressional legislation, to overturn them. Today might be their day, though -- the U.S. Court of Appeals for the D.C. Circuit has found that the District's gun restrictions are unconstitutional.
In a decision published today, the court wrote that the District's restrictions on gun ownership, which date back to 1976, unconstitutionally infringe upon the rights of citizens to bear arms. The court's opinion, written by Judge Laurence H. Silberman, argued that gun ownership is an individual right and that the city's restrictions -- which include a ban on handgun purchases or ownership (though guns bought before 1976 are exempt) and mandate that rifles and shotguns be kept unloaded and disassembled -- violate the spirit of the Second Amendment. The case stems from a lawsuit filed by six District residents in February 2003, four of which expressed a desire to own handguns for self-defense, one of which owned a shotgun but wanted to keep it assembled and loaded and one who is a special police officer and wants to keep a gun at home. None of the residents expressed a desire to carry the gun outside their homes, nor did they seek to challenge the right of the city to mandate firearm registration.
The District's lawyers argued that the Second Amendment guaranteed only a collective right to gun ownership (as part of a "well-regulated militia"), that the District is a not a state and thus not subject to the provisions of the amendment (which, they argued, are limited to residents of "free states") and that handguns were not conceived of when the Second Amendment was written (the court responded by arguing that such a standard would allow only the ownership of sabers). Judge Karen Henderson agreed with the District in her dissent to the court's decision.
The court's decision doesn't mean that we'll soon be able to rush out to the corner store and buy a .38 along with our gallon of milk, though. The court's ruling only clarifies some constitutional points and orders a lower court to allow a suit filed by Dick Heller, one of the appellants, to move forward. Heller, the special police officer, actively filed a request to register a handgun, but was turned down by the District. Since he suffered an injury in the legal sense of the word, he's being allowed to proceed with his suit. The decision is important, though, in that an important court has actively interpreted gun ownership in such a fashion that it might shoot down ownership and possession regulations across the country. While the District can appeal the decision to the U.S. Supreme Court, the additions of Chief Justice John Roberts and Justice Samuel Alito, both conservative icons, may push the highest court in the land to uphold the appellate court's interpretation of gun ownership as being an individual, not a collective right.
Might the District's gun laws soon coming tumbling down? Not anytime soon with the way the legal system works, but this decision has laid the foundations for it.
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I'll be the first to say it...
The Second Amendment is outdated, archaic, and given the propensity for stupidity we regularly utilize, dangerous.
I understand the desire to protect one's home and family, but too many people never learn to use their weapon properly to make it an effective tool. Guns don't kill people, people kill people.
If anything, peace officers should be the only people allowed to carry/own/keep guns in the District, as many of them live here.
But no, rewrite our sacred Bill of Rights, that's blasphemy! Don't get me started on the other problem area...
I'm TOTALLY going to buy a gun as soon as I get off of work.
Thank you U.S. Court of Appeals!!!
Does carrying concealed Koala limbs fall within my right to bear arms?
The end of DC's gun possession law could not come soon enough! Every criminal and thug in this city has a gun but the rest us are not allowed to defend ourselves (even in our own homes).
Not that I agree with DC's reasoning.. but the Court needs a lesson on the history of firearms. Do they think we won the Revolutionary War with sabers?
Nice try with the whole "DC isn't a State" thing.. but the Court has already bent over backwards to consider DC a State for just about everything except Congressional representation.
It's about time. If every criminal in DC/Md/Nova can ILLEGALLY own a gun, every law abiding citizen should be allowed to LEGALLY own a gun. Period.
"handguns were not conceived of when the Second Amendment was written"
Gah? Dude, they totally had flintlock pistols back in the 18th Century. It's just they weren't high-capacity flintlocks with armor-piercing, or even jacketed hollowpoint rounds.
If we're going to be splitting Constitutional hairs, how about a hairsplitting compromise? Since District residents don't have full voting rights, they don't get full Second Amendment rights. Instead, they get 1/3 Second Amendment rights, i.e. only a third of the residents can own handguns. OR they guns they own can only carry a third of the ammunition of a regular handgun. So you get a two-shot derringer or shotgun instead of a six-shot revolver.
And given some of the sloppy marksmanship we've seen recently, I'm sure most future victims of gun violence will only be partially crippled instead of completely dead.
Is there some place in America where I can get a .38 and a gallon of milk? Because sometimes my lactose intolerance just makes me want to go on a crosscountry killing spree and that would make it really convenient for me.
Here's what completely floors me about the U.S. Court of Appeals in this case: the Constitution only directly applies to states. And according to Congress, the District of Columbia is not a state.
So, by definition, would this court ruling also have bearing over the law in Puerto Rico, Guam, the U.S. Virgin Islands, and so forth?
Y'know, right now I kinda wish the whole "DC Statehood" movement would fold up their tends for a little while. I know it's reactionary, but this ruling is such a piece of amateur-hour legal crap that I don't know where to start.
What a crock!
I can understand why everyone is freaking out about this, given that the gun ban has done such an awesome job of stopping gun crime in this city.
Thank goodness we don't live in such a dangerous place where they actually allow guns like, say, Wyoming.
It's about time. If every criminal in the area can ILLEGALLY own a gun, every law abiding citizen should be allowed to LEGALLY own a gun. Period.
J,
Is the first amendment outdated, what about the 19th? Your position is outdated.
No dice on the Koalas. There's no right to marsupial arms.
However, you may equip your whole militia with Butterstick's limbs.
I completely disagree with you. The word "people" used in every other way means the rights of individuals. And the words "shall not be infringed" mean exactly that. By your interpretation only government mandated media outlets have the right to freedom of speech.
Can I see your license and papers for this pathetic blog please?
"If anything, peace officers should be the only people allowed to carry/own/keep guns in the District, as many of them live here."
Double gah? I've known quite a few DC cops in my time.
None of them live in DC.
"four or whom," not "four of which"
I agree with Richard, but lets take it a step further. If every criminal can ILLEGALLY murder his neighbors, us law abiding citizens should be able to LEGALLY commit murder. Up with freedom! Down with the District's oppressive Anti-Homicide legislation!
Rudi - You should (re)take ConLaw before spouting off about amateur-hour crap..
Nic - Try reading comprehension.
Dave,
Yeah, I do have a problem with the first, but that's because I'm a tree-hugging liberal who thinks neo-cons should have their mouths stuffed with wood chips.
And the 19th, why the hell should women vote anyway, everyone knows that they think the same things as their husbands, brothers and fathers...
That's not the point. The point is that the 2nd was written for a very specific period of time and lacks the semantics to justifiably apply today, in the same form.
"2nd was written for a very specific period of time "
Ha, good luck to you.
DCP: By 'LEGALLY commit murder', do you mean 'self defense when an armed uninvited criminal enters your house'?
j: Regardless of when or why the 2nd ammendment was written, if you take it away the only people with guns will be the criminals. How exactly is that beneficial to society?
DCP - Why does gun ownership in your view equate murder? Perhaps you and your liberal bretheren can not be trusted to handle a gun in a responsible manner but many of us grew up with guns and were taught how and when to use them. We have the right to bear arms and many of us do weather DC allows it or not.
This issue has a long over-due appointment at the Supreme Court.
In the case of the Second Amendment being interpreted to allow collective gun ownership, then you can form into a militia group, so long as it is regulated and for the defense of the office of the government -- not to be confused with the tyrants who occupy the chairs. Preserve the US Constituton, vote the bums out, if the bums don't leave, then the militia escorts them out. Go to the streets and conduct field investigations and arrests to rid our nation of illegal aliens. It is our country and we own it, so let's act like we own it and take pride in protecting it or forever dwell over our dereliction for losing it.
The DC gun ban suffers from at least 3 serious flaws:
1. It's unconstitutional. The Constitution says the right to bear arms shall not be infringed. The gun ban infringes. It's pretty straightforward.
2. It's ineffectual. The gun ban has done exactly zilch to stop gun crime. All it means is that guns are obtained from your guy on the corner instead of a guy in a store. It's symbolism over substance.
3. It makes the situation worse. If you ban guns only criminals will obtain them. If you're already willing to rob, murder or rape, you're probably not going to have qualms about breaking a gun ban either. Not only that, it's now almost guaranteed that the people you prey upon -- the law-abiding -- will be unarmed. Hurray for you.
It may sound cliched, the problem isn't guns, it's people. My parents live in Colorado Springs which is pretty much NRA Central. I worry FAR more about getting shot in DC than in CO. The difference? CO Springs has fewer thugs willing to use guns.
If you think with your brain instead of your heart on this one, you'll see what a joke the gun ban is.
Oh, and before anyone trots out the argument about low levels of gun violence in Yurp, Japan, etc. do a thought exercise. If guns were allowed in all those places do you think gun crime would suddenly shoot up there? I seriously doubt it, because the underlying factor there is the culture against violence, not the availability of weapons. Access to a gun doesn't suddenly make you a maniac.
DCist - Check the end of the ruling..
"For the foregoing reasons, the judgment of the district court is reversed and the case is remanded. Since there are no material questions of fact in dispute, the district court is ordered to grant summary judgment to Heller consistent with the prayer for relief contained in appellants’ complaint."
So yeah, the original suit will proceed in the lower court, but the outcome is already dictated (pending appeal to SCOTUS, naturally).
I get to buy a gun now!
Is that enough to make everybody re-think the issue?
Re: comment 12. Actually, Butterstick and others of his Panda ilk are more closely related to raccoons, so no go on that one, either.
Does this mean I will no longer have to register my pepper spray/twigs/pebbles/angry thoughts with the police?
"Here's what completely floors me about the U.S. Court of Appeals in this case: the Constitution only directly applies to states. And according to Congress, the District of Columbia is not a state."
Rudi- since it's obvious you missed that day in Civics 101, let me explain it to you. The constitution applies to the branches of the federal government, specifically those that it sets up, as well as the states. The second amendment applies to congress- it wasn't until the incorporation by the 14th amendment that the bill of rights applied to state action. Article 1, section 8 gives congress sole authority over DC (hence the whole "not a state" thing). Congress then delegated a significant amount of that power to the city government. But because all of the city's power comes from congress, the city can't do anything that congress can't do directly. Congress can't violate the 2nd amendment. Therefore the city can't violate the 2nd amendment.
Ugh. After skimming through the opinion it's pretty horrible- the judges never express one idea where 18 would do just as well. But, the bottom line is that they lay the smack down on the handgun ban about 47 different ways. This one's going to the Supreme Court, folks. Unless the court decides to decline cert, which would be the same as finding against the ban.
I see the gun ban like I do the smoking ban. Both sides are shrill: the "pro-freedom" side sounds obnoxious in its resistance to bend (and, in the case of people talking of "defending their home", quite scary in how excited they are to kill an intruder). Meanwhile, the "pro-ban" side just wants to use legislation to act out on its genuine dislike of people who smoke or own guns. And I'll sadly put myself on that side: there's no constitutional basis for it, but I just don't see why anyone would want to own a gun.
I would prefer a society with no guns, but since that aint happening any time soon, D.C. residents should ahve the same Constitutional rights as other Americans. Interesting that the Constitution suddenly applies in D.C. once the demographics become more White and less Black. 30 years ago, D.C. was "Chocolate City" and the courts had no problem with a gun ban. Now it's a lot more vanilla and....I'm just sayin'.
Forget guns. If every criminal in DC can ILLEGALLY own drugs .... oh nevermind, it was worth a try.
That said, could some of you home defender advocates cite me some stats on how many shootouts, murders involving guns, etc. take place in your homes? Seems to me a good chunk are on streets (see Adams Morgan just a few days ago), dance clubs and Metro buses (I'm only half joking).
All eyes on Fenty's press conference this afternoon. I imagine his opinion is in line with Norton's, i.e., the gun ban is the only thing standing between DC residents and rivers of blood flowing down 14th Street.
I can already hear her gears turning about how this is a violation of DC sovreignty and how can we re-word the gun ban so that it's constitutional?
Brody - I kind of liked the scattershot approach. Plus, they had to respond that way because that was the way DC argued the case.. saying it's a collective right, oh that doesn't work? Well, it doesn't apply to states! No? Uhh.. it only applies to "arms" in historical context, yeah! etc..
"I see the gun ban like I do the smoking ban."
Except for the fact that they're completely different, yeah.
I bet the Supreme Court avoids this. They haven't taken a 2nd Amendment case since 1939.
I applaud the decision of the Court of Appeals. I'm amazed that the DC handgun ban has lasted as long as it has. It's pretty clearly unconstitutional.
And saying that our forefathers didn't expect armor-piercing bullets and whatnot is incredibly stupid. Forefathers didn't expect the Internet either. Is that not protected? How about homosexuality? Is that not protected?
The decision probably makes DC a wee bit more dangerous. I'm OK with that in the name of the Constitution.
cmoney: new mayor, more diverse (read: Caucasian) city administration and now the city vote comes under a vote? I'm sure it's completely coincidental.
Colin: Do you think more guns will turn DC into Colorado Springs through some MAD based freeze in violence? Also, considering the high rate of economic inequality adding guns would make DC more like Sao Paulo. Additionally, not all gun crimes are committed by murderous thugs. I'm comfortable avoiding all gun related accidents, crimes of passion, mistaken identity killings and manslaughters.
monkey: I think you can get milk, guns and panda parts at Wal-Mart--you just have to hike it to the suburbs.
Ooh scary thought, what if we have to lose the ban to win over the gun-toting states and get voting rights?
I sort of have my doubts that a ban on gun sales helps stop crime in DC, although I'm equally suspicious of the notion that having a gun in your home will stop crimes either. The only legit argument I see in opposing a ban on guns would be for those who use guns to hunt. Of course, that shouldn't involve hand guns, and really, what percentage of DC's population hunts?
In any case, I'm largely indifferent to this topic. However, I do think everybody's missing an obvious problem here -- do you really think the Feds would want unfettered guns sales here in DC? How about a gun shop on the other side of Lafeyette Park from the White House; or around the corner from some hotel where the Prez is speaking? You'd think with our hyper-sensitive Administration currently in power, which sees a terrorist plot everywhere, would be frightened by the possibility.
"this is a violation of DC sovereignty"
DC sov.. what?
I think the SCOTUS will take it and rule on the issue once and for all. But I'm usually wrong about what cases they grant cert to.
"Re: comment 12. Actually, Butterstick and others of his Panda ilk are more closely related to raccoons, so no go on that one, either."
Well considering that giant pandas are part of the Ursidae family, the one that only has bears in it, I'd say they're more closely related to, you know, bears.
(Racoons are in the Procyonidae family)
OK, the text: "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."
I think the supreme court won't want to touch this with a ten foot pole, and if they do, they will decide it on the narrowest grounds possible. Why? The last time they really took it up was 1939 in US v. Miller, and they were arguing over whether a sawed off shotgun was a weapon fit for civilian militia use. Unless Congress repeals the amendment, they have to interpret laws within the framework of the second amendment, and it allows for no laws to restrict ownership of "arms." Again, whether handguns are "arms" or not is not a question that they likely want to get into. Scalia hunts anyway(he lived through going duck hunting with Cheney).
The second amendment is like the demented relative you keep locked up in the attic. The thing was written by commitee and is a sytactic mess. Militias are now the national guard, and there has been some back and forth over which weapons are arms for militia/civilian use and which are heavier duty/only military.
More guns, less votes.
More guns, less votes.
Residents should be more than entitled to own guns.. so long as those same residents are willing to serve our nation in places like Iraq and Afghanistan where such guns could be utilized for an actual useful purpose.
"And saying that our forefathers didn't expect armor-piercing bullets and whatnot is incredibly stupid. Forefathers didn't expect the Internet either. Is that not protected? How about homosexuality? Is that not protected?"
Wait, homosexuality is a new invention? Then what the hell were the Greeks doing?
Re: all of this defending yourself when someone braks into your home, does anyone know the dc self-defense/defense of property/deadly force statutes? Is there a duty to retreat before using deadly force (even in your own home) here in DC?
"there's no constitutional basis for it, but I just don't see why anyone would want to own a gun."
There's no constitutional basis for anal fisting either, but I'll fight to the death your right to slap some thirty-weight motor oil on your forearm and go drilling for mud bunnies.
Or something. My Voltaire's a little rusty.
Last time I checked, Walmart on Route 1 doesn't carry guns anymore. And to get the panda parts you have to use some special hush-hush, wink-wink code like "My HOVERCRAFT is full of EELS."
I think if you want to regulate something then enforce strong gun saftey training. Require owners to properly lock the guns up when not in use. (like if you have five guns At least four should be locked up when in storage.) If it is people that kill people then train them not to be stupid. Everyone should and does have the right to own a gun. So long as they are not a lunatic that is a danger to everone around him/her then I am all for it. However everyone who owns one should know how to be really, really, really safe.
"If it is people that kill people then train them not to be stupid."
You haven't driven a car downtown lately, have you?
I can't believe the dissenting Judge said that the 2nd amendment didn't apply to DC because its not a state!! Using that logic it's still legal to own slaves in DC as well.
Great. This comes along just when I'd resigned myself to death by global warming.
Re: all of this defending yourself when someone braks into your home, does anyone know the dc self-defense/defense of property/deadly force statutes? Is there a duty to retreat before using deadly force (even in your own home) here in DC?
I don't the exact statute in DC, but the general legal standard is that deadly force in self defense is justifiable if a person is in reasonable fear of serious physical injury or death. According to Wikipedia, most states also include a "duty to retreat" when possible, but this does not apply in the home (where else are you gonna retreat, the bedroom?)