This should make for some interesting posturing in the near future:
A federal appeals court overturned the District of Columbia’s long-standing handgun ban Friday, rejecting the city’s argument that the Second Amendment right to bear arms applied only to militias.
[ . . . ]
The court also ruled the D.C. requirement that registered firearms be kept unloaded, disassembled and under trigger lock was unconstitutional.
The Bush administration has endorsed individual gun-ownership rights, but the Supreme Court has never settled the issue.
If the dispute makes it to the high court, it would be the first case in nearly 70 years to address the Second Amendment’s scope.
There will be a whole lot of noise before anything useful or important gets said, I suspect.
Jackson Landers
It’s about damn time. The dissenting judge’s position was absurd. It boiled down to a statement that Constitutional rights do not apply to the people of DC because DC is not a state. Thank God that neither of the other 2 judges agreed with him or we could have been facing a legal precedent that allowed banning free speech and any other civil right in the Capital.
TheGreenMiles
I could see the debate over the constitutionality of banning all guns. But the DC law doesn’t ban all guns. It bands HANDguns. Rifles and shotguns are OK with permits and trigger-locks. Just like the 1st Amendment doesn’t protect fighting words or yelling “fire” in a crowded theater, the 2nd Amendment shouldn’t allow every firearm in every community.
What really ticks me off? If this was any other issue, you know conservatives would be railing against those activist judges overruling the will of the people.
MB
I’ve not read the opinion yet, but if the reports are right (and that’s a big if), that was indeed a very tortured dissent, Jackson.
~
I don’t know (or care) enough about 2nd Amendment decisions to speak intelligently on the limits of gun regulation, Miles, but I do know that DC’s regulation borders on a near practical ban. I’ve a friend who kept his sporting clay shotguns in my (Arlington) basement because he (living in Glover Park) couldn’t secure a permit for his shotguns, despite months of efforts. Only after a bit of serendipity and personal interest on the part of the DC police did that permit get issued. And everyone I know who hears about that is amazed that it was issued at all.
And yes, you’re exactly right about the “conservatives” and their selective bleating about “activist” judges . . .
Beth
I know of at least one (very old, I think) state high court decision that held that the Second Amendment does not apply to the states, that is was never incorporated into the 14th Amendment substantive due process guarantee. Under that theory (which is different from the “militia” theory), the Second Amendment would still apply to D.C., right, but state governments could ban guns in any way they want?
MB
Decision here (75 page PDF, dissent starts on 59).
Beth, the theory sounds right, but I have a hard time imagining that it hasn’t been tried and rejected. Maybe it’s time for me to start looking for a refresher on the subject (it’s an area with so much crap to wade through that I’ve generally avoided it online . . .).
Beth
The case I was thinking of was In re Rameriz, 226 P. 914 (Cal. 1924). Still good law in California, holds that gun control is a proper function of state police power and does not implicate the 2nd Amendment because that only applies to the federal government. That case in turn cites United States v. Cruikshank, 92 U.S. 542, 553, and Miller v. Texas, 153 U.S. 535. I’d say that Rameriz is of questionable merit on its own since it relies on older cases holding that NONE of the first ten amendments apply to the states, and that’s obviously old news, but the California Supreme Court as recently as 2000 cited Rameriz for its basic principle — that the states can regulate firearms at will because the Second Amendment doesn’t apply to them.
Beth
And a quick look at the law in this area suggests that this is how most states have decided the issue: screw the Second Amendment, it doesn’t affect us, and this is a proper exercise of our police powers.
MB
Huh.
I think I’ll take a look at NY then, as they’re the next most gun-restrictive environment that comes to mind.
(This is interesting – my understanding of this has been turned inside out.)
Beth
It looks like the federal courts have taken a completely different approach, anyway, one that seems more sensible to me.