D.C. Circuit rules Second Amendment grants individual right to bear arms; Update: SC may decide in June 2008

posted at 11:27 am on March 9, 2007 by Allahpundit

InstaGlenn’s an expert on SA jurisprudence so keep your eye on this post for updates, but even knowing as little as I do about Second Amendment law, I can tell you this is big. The Supreme Court hasn’t squarely addressed the question of whether the right to bear arms is an individual or collective right in almost 70 years, and even then they didn’t address it so squarely. But they might now: the D.C. Circuit is the most influential court in America next to SCOTUS itself and the author of the opinion, Laurence Silberman, is a conservative judicial icon who was considered for elevation when he was younger. His ruling cuts against the grain of most appellate case law too, as I understand it, and the Supremes abhor a circuit split. Combine all that with the fact that we might have a Democrat appointing new justices two years from now and there’ll be heavy pressure on Roberts, Scalia, Thomas, and Alito to take the case (which only requires four votes) and get a ruling on the books before the Court loses its conservative majority.

Of course, if they do take the case, Kennedy will vote with the liberals and rule that the right is collective, not individual. Sigh.

Say what you want about Bush vis-a-vis Reagan, but early indications are his justices will prove to be a lot better on balance than the Gipper’s. Scalia notwithstanding.

Exit question suggestion: Go read the blockquote from the opinion at Howard Bashman’s site. Mangia!

Update: Ace thinks this might make Rudy’s position on gun control moot. True — if the Supreme Court grants cert. If they don’t, it makes Rudy’s position even more important because other circuits are going to see gun-control challenges now that point to this decision. There’ll be probably be a split, but the split may not materialize until 2009. In which case it matters a whole lot what the next president thinks about the SA.

Update: The timetable may be even dicier than I thought. Volokh says the Supreme Court decision would come down four months before the election, assuming that cert is granted of course.


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I don’t know about anybody else, but AP’s little 1-3 word comments under the photos (on the front page) always make me chuckle.

Rich on March 9, 2007 at 11:34 AM

The people without guns are going to be really upset when the zombies come.

JasonG on March 9, 2007 at 11:34 AM

The Bush v. Reagan comparison doesn’t quite hold water, given that Alito was Bush’s 2nd choice after Miers and Kennedy was Reagan’s 3rd choice after Bork. Reagan started strong and eeked out a nomination that would pass a substantively Democrat Senate. Bush started very weak and finally got it right with a nominally Republican Senate.

Had Bush shown the least inkling of leadership on the judges issue, he could have actually made a dent. He didn’t.

spmat on March 9, 2007 at 11:38 AM

From the opinion

to summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution

And yet we sit here wondering whether our progressive betters will rule in our favor– and if not, then what? The inebriating soma of Season XIX of American Idol?

Sigh. Always Leonidas, in a world ever Xerxes.

a4g on March 9, 2007 at 11:38 AM

The Second Amendment grants the right to bear arms? No shit?

So how long did it take the D.C. Circuit to actually read the amendment?

saint kansas on March 9, 2007 at 11:39 AM

We don’t say it enough. AP, you do a tremendous job.

budorob on March 9, 2007 at 11:41 AM

It’ll be interesting to hear what CAIR has to say about this. It’s definitely not very caliphate-friendly.

RedWinged Blackbird on March 9, 2007 at 11:42 AM

Fantastic ruling. May we all be blessed with Garand’s and 1911′s!

infidel on March 9, 2007 at 11:43 AM

That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad).

Not just a constitutional right, but a pre-constitutional NATURAL RIGHT, baby. Thomas writes the majority.

see-dubya on March 9, 2007 at 11:50 AM

Rich- I love them too! I have HotAir featured on my homepage and I saw the diddle post and spit coffee! :)

Pam on March 9, 2007 at 11:50 AM

That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad).

Finally a modern court recognizes a private citizen’s right to defend themselves from criminal activities by the use of force. I wonder what took them so long?

RedinBlueCounty on March 9, 2007 at 11:54 AM

Wait. 300 is in theatres, and the 2nd amendment means what it says? My willy is gonna fall off this weekend!

lorien1973 on March 9, 2007 at 11:59 AM

Congrats DC Circuit Court you red the damned constitution
that’s kinda what you had to do to pass ConLaw I

Defector01 on March 9, 2007 at 12:01 PM

Say what you want about Bush vis-a-vis Reagan, but early indications are his justices will prove on balance to be a lot better than the Gipper’s. Scalia notwithstanding.

This may be one of his two saving graces (tax cuts being the other).

Of course, had Bork been confirmed, Reagan would be at least equal if not better than Bush in this regard.

thirteen28 on March 9, 2007 at 12:17 PM

Somebody better tell Mayor Daley about this decision…

major john on March 9, 2007 at 12:22 PM

.

Gun Control = Steady Sight Picture.

Lawrence on March 9, 2007 at 12:28 PM

“The right of the People” appears in several amendments of the bill of rights so why is it that only in the 2nd amendment is this phrase ever challenged by the libs?

robo on March 9, 2007 at 12:36 PM

The people without guns are going to be really upset when the zombies come.

JasonG on March 9, 2007 at 11:34 AM

One of the little discussed benefits of the Second Amendment is the ability to defend your family from zombies.

All the new zombies can run! You need hi-cap mags for those!

I hear Jim Zumbo is deeply saddened.

quax1 on March 9, 2007 at 12:39 PM

“Gun control” consists of hitting the intended target.

Forbidding the sale of “assault weapons” to prevent killings by handguns is a poorly aimed statute.

htom on March 9, 2007 at 12:47 PM

Section 7-2507.02, like the bar on carrying a pistol within the home, amounts to a complete prohibition on the lawful use of handguns for self-defense. As such, we hold it unconstitutional.”

After never ending assaults by liberal courts on every aspect of the America that I grew up in……… I am almost brought to tears of joy by this desicion.

PinkyBigglesworth on March 9, 2007 at 12:47 PM

Bush SHOULD win court appointments hands down. He had a republican senate on his side. Reagan did pretty good, considering the democrats controlled both houses. I think it was far less partisan in the 80′s though, than today.

lorien1973 on March 9, 2007 at 12:57 PM

Of course, if they do take the case, Kennedy will vote with the liberals and rule that the right is collective, not individual. Sigh.

Everyone always looks back at Reagan with such nostalgia, but Reagan was a really failure when it came to Supreme Court justices. To me, it really hurts his legacy, whereas Bush will leave a much better legacy on this issue.

januarius on March 9, 2007 at 1:07 PM

Fantastic ruling. May we all be blessed with Garand’s and 1911’s!

infidel on March 9, 2007 at 11:43 AM

Better hurry, Rack Grade M1s are all that’s left….

ScottG on March 9, 2007 at 1:10 PM

Wait a minute?

If the Second Amendment grants an individual the right to own a weapon, does the fourteenth ammendment (incorporation doctrine) render all state and local gun control laws (ie. background checks, assault weapons bans, ect..) unconstitutional?

This will be overturned if taken up by the Supremes; if not, they will have just loaded the entire appellate process with people challenging laws that they otherwise would not have challenged.

The court’s have generally viewed weapons’ regulation as a political issue, and they will continue to do so.

bert169 on March 9, 2007 at 1:21 PM

Amendment II
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’m glad this case came out the way it did, any other result would have been a complete fraud on the Constitution and the American People, but why should this question ever come before the court in the first place? The words of the Second Amendment are very clear.

Maxx on March 9, 2007 at 1:34 PM

All praise John Browning (peace be upon him)! I suggest everyone celebrate by buying a case of ammunition or reloading supplies. Molon Labe, baby.

“Then He said unto them, ‘But now, he that hath a purse, let him take it, and likewise his scrip; and he that hath no sword, let him sell his garment and buy one.’ ”
- Luke 22:36

Barntender on March 9, 2007 at 1:34 PM

So how long did it take the D.C. Circuit to actually read the amendment?

You need to be able to read to be on the Circuit Court? Even in the 9th CC???

Dread Pirate Roberts VI on March 9, 2007 at 1:53 PM

This is bad news for the Dem hopefuls. They will be all asked about this and, for them, the answer is a no win.

TheBigOldDog on March 9, 2007 at 2:04 PM

That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad).

That’s just beautiful. In a world where terrorists that don’t wear uniforms and represent no nation are given rights under the Geneva Conventions, it’s refreshing to see a court rule that the law means what it says it means. Instead of, say, what some hack liberal judge wants it to mean in order to further their agenda of destroying America from within.

“God created man, Sam Colt made them equal.”

ReubenJCogburn on March 9, 2007 at 2:17 PM

Better hurry, Rack Grade M1s are all that’s left….

I’d rather have a new one anyway.

What are the chances that they also conclude that the rate of fire at which we are allowed to defend ourselves is also not limited by the constitution?

TexasDan on March 9, 2007 at 2:46 PM

…there’ll be heavy pressure on Roberts, Scalia, Thomas, and Alito to take the case (which only requires four votes) and get a ruling on the books before the Court loses its conservative gets an even greater liberal majority.

Fixed that for you, Allah.

hindmost on March 9, 2007 at 2:47 PM

Wow, if Rosie was depressed before this ruling, she’ll be downright suicidal now!

bernzright777 on March 9, 2007 at 3:00 PM

You might be getting a bit ahead in your prognostications about the case. Before seeking Supreme Court review, it is possible that a party may ask for rehearing before the entire circuit, known as en banc review. If a majority of active judges vote to rehear, the original 3-judge panel decision gets vacated and the appeal is reargued before the entire court. (For more about this type of rehearing, see this one page excerpt from a Harvard Law Review piece, “The Politics of En Banc Review.” )

AlexHamilton on March 9, 2007 at 3:30 PM

Say what you want about Bush vis-a-vis Reagan, but early indications are his justices will prove to be a lot better on balance than the Gipper’s. Scalia notwithstanding.

Reagan didn’t have the farm team that Bush does. That is, the number of qualified and bonified conservative jurists was much smaller.

Bill C on March 9, 2007 at 3:33 PM

Just remember people, it doesn’t say guns, it says arms(weapons). Just like Ann, I want my tank! OOooo, And a jet fighter; ya know, for the commute to work. Concealed carry for a sword and a brick or two of C4?

BTW, what do libs think about illegal and guns?

- The Cat

MirCat on March 9, 2007 at 3:53 PM

Illegals that is.

MirCat on March 9, 2007 at 3:54 PM

So if it’s collective, who wants to chip in on a Glock?

Hening on March 9, 2007 at 4:14 PM

Does the DC Court accept fan mail?

opiemuyo on March 9, 2007 at 4:21 PM

Press for support of this bill HR 1096 Repeal of the gun control act.

AZPatriot on March 9, 2007 at 5:06 PM

If the Second Amendment grants an individual the right to own a weapon, does the fourteenth ammendment (incorporation doctrine) render all state and local gun control laws (ie. background checks, assault weapons bans, ect..) unconstitutional?

It does in the 1st and 5th US Districts (see Emerson), both of whom have upheld the “standard model” interpretation. But it opens the door to overthrow all gun bans, particularly “assault weapon” bans nation wide if it ss not overturned by the USSC.

Does it invalidate all gun control laws in those 2 districts? Nope. However, laws requiring gun lock or secure storage at all times, “registration” laws that effectively ban handguns like in Chicago, gun and bullet “taxes,” or others laws that prevent lawful ownership of guns are likely to now be struck down in the 5th and 1st districts.

It would not necessarily overturn registration laws, background checks, laws prohibiting felon ownership, Firearms Owners ID cards, waiting periods, and so on. In fact, I think it unlikely that registration laws will be affected unless they are shown to be “back-door” prohibition, as the DC ban was.

The 9th District’s rulings that the 2nd is a “collective right” are now threatened as well, especially if the Supreme Court upholds the 1st district.

No doubt this case will be used in the other districts as precedent, including the 9th, though appellate rulings are not BINDING on other districts. Appellate judges are influenced by decisions in other distructs, thought not bound by them until the USSC hears them and rules on them.

But the biggest damage this ruling has to the liberals (particulary Schumer, Durbin, McCarthy, and Pelosi) is to the revived “AW” ban being considered in Congress, as it upholds the idea that the Militia’s need to have weapons suitable for fighting war cannot be infringed.

It means that laws that block semi-auto ownership (such as the proposed bill) or that prohibit guns firing “military calibers” (i.e., 9mm or 5.56mm, 7.62mm, .50BMG caliber, etc.) are going to be under direct challenge because the ruling directly refers the the Militia and their arms.

Does it mean you can go out and buy artillery, machine guns, or other crew-served weapons systems? No, though the flat out 1986 prohibition for NEWLY manufactured machine gun owernship enacted back-door in the Firearms Owners Protection Bill might be vulnerable to being overturned. The National Firearms Act of 1934 requiring a tax for “class 3″ firearms and destructive devices is not involved because NFA does not prohibit possesson, only taxes it. However, state laws that outright prohibit possession of NFA weapons are now vulnerable to being overturned.

This is a GOOD day for gun owners, the NRA, GOA, and other RKBA supporting organizations.

It’s a very bad day for the gun grabbers (“boo-freaking-hoo”) and politicians like Rudy and McCain who support “gun control.” BOO-FREAKIN’-HOO and HA-HA-HA-HA-HA to them.

georgej on March 9, 2007 at 5:21 PM

Hening writes: “So if it’s collective, who wants to chip in on a Glock?”

Uh, the court said it is an INDIVIDUAL right, not a collective right.

georgej on March 9, 2007 at 5:22 PM

This is bad news for the Dem hopefuls. They will be all asked about this and, for them, the answer is a no win.
TheBigOldDog on March 9, 2007 at 2:04 PM

Sadly, I think you’re incorrect. It’s a win with their base: “The other day I was talking with Jim Brady from his wheelchair…” “This will make it so much harder to enforce sensible gun restrictions…” “You must elect us so that a Republican President cannot put another justice on the Court who will make it impossible for you to walk down any street in America safely…” This ignorant crap almost writes itself.

eeyore on March 9, 2007 at 5:51 PM

Not just a constitutional right, but a pre-constitutional NATURAL RIGHT, baby. Thomas writes the majority.

see-dubya on March 9, 2007 at 11:50 AM

“…the right of the people…” to celebrate! Yeah buddy.

Zorro on March 9, 2007 at 5:56 PM

In a related story, the Federal Government has graciously granted permission for the sky to be blue and water to be wet.

infidel4life on March 9, 2007 at 6:07 PM

georgej on March 9, 2007 at 5:21 PM

Good post georgej, it sounds like you are very well informed on this issue, I wish more Americans were. Our Founding Fathers gave us a wonderful with the The Bill of Rights, but without the Second Amendment, it’s just words on a piece of paper. Jefferson said it best….

When the government fears the people, you have liberty. When the people fear the government, you have tyranny.

Thomas Jefferson, Third U.S. President, Declaration of Independence — principal author

Maxx on March 9, 2007 at 9:03 PM

Better hurry, Rack Grade M1s are all that’s left….
I’d rather have a new one anyway.

TexasDan on March 9, 2007 at 2:46 PM

Heaven forfend!!!!

ScottG on March 9, 2007 at 9:18 PM

Wait a minute?

If the Second Amendment grants an individual the right to own a weapon, does the fourteenth amendment (incorporation doctrine) render all state and local gun control laws (ie. background checks, assault weapons bans, ect..) unconstitutional?

I hope so, the people’s republic of Kalifornia has a ridiculous ban on the black rifle. And while I don’t favor AR’s for airsofting; this would allow me to finally get a HK91 that I’ve always wanted (no “pistol grips” in the PRCal)!

Molon Labe!!!!!

liquidflorian on March 9, 2007 at 9:31 PM

If either court (the en banc Appellate court or the Supremes) does overturn this decision, I think it’s encumbent upon them to explain why they decided to overlook literally every word the Founders wrote about the document they’d created.

That would be an amusing story, to be sure.

I am frequently boggled by the inane arguments that come out of the controller’s mouths, and rarely does the debate last more than a few minutes (or posts). The history of individual disarmament is crystal clear.

The most boggling thing is the refusal to realize that, whether or not you WANT to be responsible for your own safety in the face of a world full of risks, you still have to face those risks.

We in Western civilization tend to forget the history of brutality that is human history. We are the same kind of people who sacked Rome, the same kind of people who tore out the heart of their victims by the thousand in South America, the same kind of people who tortured and killed by the millions in our bloodiest wars.

We have proven that we can control those forces of human nature – but we must come to grips with the fact that not everyone chooses to do so. Attempting the inculcate the desire for self-control is the process we call “Civilization.”

Yes, I said process. Civilization isn’t a thing you possess, it’s a process you undertake. The reward for self-control is a society where freedom is possible. Without the reward, what motive is there to undertake the process?

No freedom, no peace. It’s not a threat, it’s an observation.

Merovign on March 9, 2007 at 11:31 PM

Can we please trade the members of the 1st district appeals court with our 9th circus? Maybe soon, if this sort of thing keeps up, some favored hardware can come out of hiding.

The only proper concept of gun control results in HLOT.

Freelancer on March 10, 2007 at 5:19 AM

Finally, somebody actually read the Constitution.

Now New Yorkers should sue to get rid of their un-Constitutional Sullivan laws.

ScottyDog on March 10, 2007 at 11:44 AM

I want my tank!

Ok, but where will you park it?

RedinBlueCounty on March 10, 2007 at 12:14 PM

Wherever he pleases!

Mazztek on March 10, 2007 at 1:38 PM

I hope so, the people’s republic of Kalifornia has a ridiculous ban on the black rifle. And while I don’t favor AR’s for airsofting; this would allow me to finally get a HK91 that I’ve always wanted (no “pistol grips” in the PRCal)!

Molon Labe!!!!!

liquidflorian on March 9, 2007 at 9:31 PM

Take a look at the new Barrett Model M468 based in the new 6.8 Remington SPC that is going to replace the M-16. I saw it demonstrated on the Discovery Channel the other night and was very impressed. Of course the California Legislature will probably try to ban it too.

ScottyDog on March 10, 2007 at 2:30 PM

The damn judges shouldn’t be making decis…

Oh wait; I’m saving that rant for another topic.

Nonfactor on March 10, 2007 at 4:45 PM

“God made all men, Colt make all men equal.” I still love that quote.

KCtheKat on March 11, 2007 at 2:49 PM