TriggerFinger


Great to see the site back "with a vengence"!

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Sat Mar 10 20:37:13 CST 2007 by TriggerFinger. Comments [Tweet]

Decision of the DC Appeals Court in Parker v DC

  1. Introduction
  2. Summary
  3. Statement of the Case
  4. Standing Precedents
  5. Applying Navegar-Seegars
  6. Sideswiping the 9th Circus
  7. Still, we have not always been so clear...
  8. The 2nd Amendment as a Dead Letter

Sat Mar 10 19:42:28 CST 2007 by TriggerFinger. Comments [Tweet]

Statement of the Case

In his statement of the case, Silberman describes the claims made by the plaintiffs.
Appellants, six residents of the District, challenge D.C. Code 7-2502.02(a)(4), which generally bars the registration of handguns (with an exception for retired D.C. police officers); D.C. Code 22-4504, which prohibits carrying a pistol without a license, insofar as that provision would prevent a registrant from moving a gun from one room to another within his or her home; and D.C. Code 7-2507.02, requiring that all lawfully owned firearms be kept unloaded and disassembled or bound by a trigger lock or similar device. Shelly Parker, Tracey Ambeau, Tom G. Palmer, and George Lyon want to possess handguns in their respective homes for self-defense. Gillian St. Lawrence owns a registered shotgun, but wishes to keep it assembled and unhindered by a trigger lock or similar device. Finally, Dick Heller, who is a District of Columbia special police officer permitted to carry a handgun on duty as a guard at the Federal Judicial Center, wishes to possess one at his home. Heller applied for and was denied a registration certificate to own a handgun. The District, in refusing his request, explicitly relied on D.C. Code 7-2502.02(a)(4).
Note that the description above includes several standing elements that weren't present in Seegars.  One of the plaintiffs owns a registered shotgun and wishes to assemble it into functional form, which she is prohibited from doing even for self-defense purposes.  Another plaintiff is permitted as part of his job (as a security guard) to possess a handgun, and sought to register a handgun according to the proper procedures.  His application was denied.

In the Seegars case, the plaintiffs essentially said, "Gee, it would be nice if we could own a handgun."  They did not take affirmative steps to act on that desire or to seek permission.  The situation was purely hypothetical, and this was compounded by the fact that the argument for that case emphasized the remoteness of prosecution.
Essentially, the appellants claim a right to possess what they describe as "functional firearms," by which they mean ones that could be "readily accessible to be used effectively when necessary" for self-defense in the home. They are not asserting a right to carry such weapons outside their homes. Nor are they challenging the District's authority per se to require the registration of firearms.
As I've said in the past, establishing a basic Constitutional right to possess functional firearms at home is the first necessary step.  Other laws can and will be challenged, but generally the courts have been unwilling to entertain that sort of challenge.  In this case, the plaintiffs sought the closest thing to a sure victory they could: they challenged a complete prohibition of functional firearms on federal territory, unencumbered by questions of whether the States are subject to the 2nd Amendment or what kind of restrictions are reasonable.
Appellants sought declaratory and injunctive relief pursuant to 28 U.S.C. 2201, 2202, and 42 U.S.C. 1983, but the court below granted the District's motion to dismiss on the grounds that the Second Amendment, at most, protects an individual's right to "bear arms for service in the Militia." (The court did not refer to the word "keep" in the Second Amendment.) And, by "Militia," the court concluded the Second Amendment referred to an organized military body -- such as a National Guard unit.
There are some interesting characterizations of the lower court's ruling here, particularly in noting that it did not refer to "keep" while focusing on the supposedly exclusively military meaning of "bear[ing] arms".

Sat Mar 10 19:36:45 CST 2007 by TriggerFinger. Comments [Tweet]

Summary

This short paragraph by the author of the deciding opinion is intended to provide a bare-bones summary of the outcome. 
SILBERMAN, Senior Circuit Judge: Appellants contest the district court's dismissal of their complaint alleging that the District of Columbia's gun control laws violate their Second Amendment rights. The court held that the Second Amendment ("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") does not bestow any rights on individuals except, perhaps, when an individual serves in an organized militia such as today's National Guard. We reverse.

Sat Mar 10 19:06:03 CST 2007 by TriggerFinger. Comments [Tweet]

Blogging Rules...

The FEC has published their rules for political activity on the Internet.

Hat tip to FreedomSight.

Sat Mar 10 11:39:30 CST 2007 by TriggerFinger. Comments [Tweet]

DC v Beretta: Dismissed!

The judge, it seems, was none too happy about the outcome, but felt that it was dictated by the Protection of Lawful Commerce in Arms Act
The D.C. Council, she wrote, had determined that assault weapons have "little or no social benefit but at the same time pernicious consequences for the health and safety of District residents and visitors." Congress, however, "has trumped local law by passing legislation to protect the profits of such manufacturers," she wrote.
Of course, the legislation doesn't protect "profits"; it just protects the manufacturers from liability.  If the DC Council is right about the social value of firearms, then surely no one would want to buy a firearm and all the manufacturers will shortly go out of business.

This particular case is as close to a slam dunk as we are likely to see from the POLCIAA.  I'm not surprised by the outcome.  Any judge with a minimal respect for the law would be compelled to find similarly. 

Sat Mar 10 11:39:17 CST 2007 by TriggerFinger. Comments [Tweet]

Amicus Curiae brief in Parker

The Second Amendment Foundation's Amicus Curiae brief in the Parker case.

Sat Mar 10 11:38:59 CST 2007 by TriggerFinger. Comments [Tweet]

Pro-gun Amicus Brief in Parker

The pro-gun amicis have filed their brief in the Parker v DC case.  There's an article on the brief from the Cato Institute.

Sat Mar 10 11:38:46 CST 2007 by TriggerFinger. Comments [Tweet]

Footnotes

11 Consistent with this selective approach, the District Court placed unwarranted reliance on the Supreme Court?s dismissal of a direct appeal in Burton v. Sills, 394 U.S. 812 (1969), a Second Amendment decision in the New Jersey Supreme Court. The Supreme Court is not obligated to hear any case outside its original jurisdiction; its refusal to do so is no comment on the opinion?s merits.

12 The District Court adopted two portions of the now-vacated opinion in Seegars v. Ashcroft, 297 F. Supp. 2d 201 (D.D.C. 2004): one citing various cases purportedly rejecting an individual right to arms under state constitutional provisions, but see supra, p. 13 n.5; and another listed conflicting modern circuit court opinions and concluded that ?this debate, which has resulted in a circuit split, is a prime subject for review by the Supreme Court.? Seegars, 297 F. Supp. 2d at 228. Plaintiffs agree with the latter observation.

13 Cases read Miller as being limited to its facts: ?we do not feel that the Supreme Court in [Miller] was attempting to formulate a general rule applicable to all cases. The rule which it laid down was adequate to dispose of the case before it and that we think was as far as the Supreme Court intended to go.? Cases, 131 F.2d at 922. Yet the First Circuit refused to offer its own guide for interpreting the Second Amendment. ?[I]t seems to us impossible to formulate any general test by which to determine the limits imposed by the Second Amendment but that each case under it, like cases under the due process clause, must be decided on its own facts and the line between what is and what is not a valid federal restriction pricked out by decided cases falling on one side or the other of the line.? Id.

14 Quilici held the Illinois Constitution permitted a municipality to ban handguns provided it did not ban all firearms. The Court did not reach the Second Amendment argument, as it held the Second Amendment was not incorporated by the Fourteenth Amendment as applicable to the states. Quilici, 695 F.2d at 270. Quilici?s subsequent collective rights discussion is plainly dicta.
Return to the table of contents.

Sat Mar 10 11:37:53 CST 2007 by TriggerFinger. Comments [Tweet]

Introducing the Parker Decision...

I'm starting to read through the ruling, and I'm going to use the introduction of the document as an opportunity to provide links to background material.
Alan Gura argued the cause for appellants. With him on the briefs were Robert A. Levy and Clark M. Neily, III.

Greg Abbott, Attorney General, Attorney General's Office of State of Texas, R. Ted Cruz, Solicitor General, Troy King, Attorney General, Attorney General's Office of State of Alabama, Mike Beebe, Attorney General, Attorney General's Office of the State of Arkansas, John W. Suthers, Attorney General, Attorney General's Office of the State of Colorado, Charles J. Crist, Jr., Attorney General, Attorney General's Office of the State of Florida, Thurbert E. Baker, Attorney General, Attorney General's Office of the State of Georgia,Michael A. Cox, Attorney General, Attorney General's Office of the State of Michigan, Mike Hatch, Attorney General, Attorney General's Office of the State of Minnesota, Jon Bruning, Attorney General, Attorney General's Office of the State of Nebraska, Wayne Stenehjem, Attorney General, Attorney General?s Office of the State of North Dakota, Jim Petro, Attorney General, Attorney General's Office of the State of Ohio, Mark L. Shurtleff, Attorney General, Attorney General's Office of the State of Utah, and Patrick J. Crank, Attorney General, Attorney General's Office of the State of Wyoming, were on the brief for amici curiae States of Texas, et. al. in support of appellants.
That's a mighty long list of states on our side of the issue, isn't it?
Don B. Kates and Daniel D. Polsby were on the brief for amici curiae Professors Frederick Bieber, et al. and organization amici curiae Second Amendment Foundation, et al.

Stefan Bijan Tahmassebi was on the brief for amicus curiae Congress of Racial Equality, Inc. in support of appellants seeking reversal.

Peter J. Ferrara was on the brief for amicus curiae
American Civil Rights Union in support of appellants.

Robert Dowlut was on the brief for amicus curiae National Rifle Association Civil Rights Defense Fund in support of appellants seeking reversal.

Todd S. Kim, Solicitor General, Office of Attorney General for the District of Columbia, argued the cause for appellees.  With him on the brief were Robert J. Spagnoletti, Attorney General, Edward E. Schwab, Deputy Solicitor General, and Lutz
Alexander Prager, Assistant Attorney General.

Ernest McGill, pro se, was on the brief for amicus curiae Ernest McGill in support of appellees.
As you may recall, Ernest McGill is the person behind the Potowmac Institute.  There was a bit of a kerfluffle about how to get his amicus brief included (ie, as an individual or as an organization).  It ended up being included as an individual.
Thomas F. Reilly, Attorney General, Attorney General's Office of Commonwealth of Massachusetts, Glenn S. Kaplan, Assistant Attorney General, Lawrence G. Walden, Attorney General, Attorney General's Office of the State of Idaho,
Idaho's inclusion in this brief is apparantly a mistake.  According to Alan Gura by way of the Volokh Conspiracy:
The D.C. Circuit docket sheet reports that Idaho withdrew from the brief. Alan Gura, one of Parker's lawyers reports that "Idaho withdrew its support of that brief, stating that it was in error." Matthew Bower reports (though without claiming 100% confidence) that "The directive to withdraw Idaho's support came directly from the AG, whereas the decision to support the Mass. brief in the first place apparently did not. To my understanding that decision was made by a deputy who rather badly overstepped his bounds." Interesting.
Interesting, indeed.  There's a PDF document of the official letter of withdrawal.
J. Joseph Curran, Jr., Attorney General, Attorney General's Office of the State of Maryland, Zulima V. Farber, Attorney General, Attorney General's Office  of the State of New Jersey, were on the brief for amici curiae Commonwealth of Massachusetts, et
al. in support of appellees. John Hogrogian, Attorney, Corporation Counsel's Office of City of New York, and Benna R. Solomon, Attorney, Corporation Counsel of the City of Chicago, entered appearances.

Andrew L. Frey, David M. Gossett, Danny Y. Chou, Deputy City Attorney, Office of the City Attorney of the City and County of San Francisco, and John A. Valentine, were on the brief for amici curiae The Brady Center to Prevent Gun Violence, et al. in support of appellees. Eric J. Mogilnicki entered an appearance.

Before: HENDERSON and GRIFFITH, Circuit Judges, and SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
SILBERMAN.

Dissenting opinion filed by Circuit Judge HENDERSON.
More to follow... 

Sat Mar 10 11:37:17 CST 2007 by TriggerFinger. Comments [Tweet]

DC Appeals Court strikes down firearms ban!

The case I have been following for some time, Parker v DC, has had a ruling from the Appeals Court. I haven't finished reading the ruling yet, just the SAF press release via email, which I am quoting below:

D.C. APPEALS COURT RULING HOLDS SECOND AMENDMENT PROTECTS "INDIVIDUAL RIGHT"

BELLEVUE, WA -- A ruling Friday by the U.S. Court of Appeals for the District of Columbia that strikes down the District's 1976 handgun ban and holds that the Second Amendment protects an individual right to keep and bear arms is "a landmark for liberty, and an affirmation that everything the gun rights community has been saying for years is correct," the Second Amendment Foundation said today.

The 2-1 ruling came in the case of Parker v. District of Columbia. Senior Judge Laurence H. Silberman wrote the opinion, with Judge Thomas B. Griffith concurring. Judge Karen LeCraft Henderson dissented. The ruling holds that the District's long-standing ban on carrying a pistol in the home for personal protection is unconstitutional. SAF filed an amicus brief in the case.

In his ruling, Judge Silberman wrote, "In sum, the phrase 'the right of the people,' when read intratextually and in light of Supreme Court precedent, leads us to conclude that the right in question is individual."

"This is a huge victory for firearm civil rights," said SAF founder Alan M. Gottlieb. "It shreds the so-called 'collective right theory' of gun control proponents, and squarely puts the Second Amendment where it has always belonged, as a protection of the individual citizen's right to have a firearm for personal defense."

Judge Silberman's ruling notes that the Second Amendment "acknowledges" a right that pre-existed the Constitution like "the freedom of speech".

"Because the right to arms existed prior to the formation of the new government," Judge Silberman wrote,
"the Second Amendment only guarantees that the right "shall not be infringed".

Silberman's ruling also observed, "The right of self-preservation was understood as the right to defend oneself against attacks by lawless individuals, or, if absolutely necessary, to resist and throw off a tyrannical government."

"Judge Silberman's ruling," Gottlieb said, "reverses 31 years of unconstitutional infringement on the rights of District of Columbia residents, not only to keep and bear arms, but to be safe and secure in their own homes. This is a ruling that should make all citizens proud that we live in a nation where the rights of individual citizens trump political correctness."

As the mainstream media says, developing... the full decision is available from the Second Amendment Foundation.

Fri Mar 09 22:30:24 CST 2007 by TriggerFinger. Comments [Tweet]

Now THIS is more like it!

Zumbo has a new open letter to the CCRKBA. Assuming the provenance is correct (and I have no reason to doubt it) I think Zumbo?s managed to learn quite a bit in his crash course.

Some have called for him to be given back his job. I?m not sure it?s time for that. Trust is hard to earn and easy to forfeit. But he?s definitely saying the right things, and if he set up a blog, I?d read it to see where he goes with the new understanding. Given a little more time to rehabilitate himself, with more stuff like what I linked above, and I think the gun community would be willing to forgive and forget.

Fri Mar 09 22:29:26 CST 2007 by TriggerFinger. Comments [Tweet]

Zumbo begins the long, slow climb back?

... with this editorial:

The Second Amendment, which guarantees us the right to keep and bear arms, has nothing to do with hunting, but everything to do with gun ownership. During the ensuing controversy surrounding my blog, some people have taken me to task for abandoning the Second Amendment. Nothing could be farther from the truth. If I ever, in my wildest dreams, thought the words I had written would bring the validity of the Second Amendment into question, I assure you I never would have touched my fingers to the keypad.



After more than 50 years of hunting, I've grown to favor certain types of firearms that best suit my style of hunting. While comfortable in my niche, which exclusively involves traditional bolt-action type rifles, I was genuinely unaware of the growing popularity of the AR-15 types of firearms, and in fact, had seen only one in a hunting camp years ago.

I also have received vast support from many who understood and agreed with my original intent. I realize now that the former image I conjured was largely an impression based on prejudice and misunderstandings. Your support is appreciated and I do not wish to alienate those of you who offered it, but hope that you will consider a broader more tolerant viewpoint as I have.

As a journalist, I intend to educate myself as to the entire question of these firearms. In addition I will continue to support and protect the Second Amendment. I'm now involved in an educational process to gather the facts and see for myself.

This is what he needed to do from the beginning.  There's still a hint of whine in there; Zumbo should realize that it doesn't matter how popular (or unpopular) a gun is.  The 2nd Amendment protects unpopular guns just as the 1st Amendment protects unpopular speech and religion.  But he's learning.

Fri Mar 09 22:28:59 CST 2007 by TriggerFinger. Comments [Tweet]

Failing to learn from experience?

During the Zumbo affair, while most gun writers held ranks, some showed their personal yellow streak of cowardice and ran from the field. Most prominent of those is one David E Petzal, a blogger with Field and Stream who bills himself as "The Gun Nut". Petzal had this to say about the public furor around Zumbo's comments:

The speed with which Zumbomania spread, the number of comments it drew, and the rabid nature of same were a revelation. For the last several days I've been visiting all manner of blogs and chatrooms, which has reminded me of when I used to deliver used clothing to the local mental hospital. I've tried to make some sense of it all, but because the waters are still full of blood and body parts continue to rain from the sky, I haven't come up with any Great Truths.

Zumbo called people who owned AR-15-type rifles "terrorists". Petzal has compared the people offended by being called terrorists to rabid mental patients prone to extreme violence. I don't see much difference here.

(Read More...)

Fri Mar 09 22:28:25 CST 2007 by TriggerFinger. Comments [Tweet]

Discipline

There appear to be three main groups of responses to the Zumbo controversy.  First of all, some people agreed with his original statement; they are a  minority of gun owners, I hope.  Second and third, though, are the people who disagreed with Zumbo.  Some of those people wanted Zumbo out of a job and for all practical purposes out of the firearms community.  Others felt that, following his apology, Zumbo should be welcomed back with open arms and educated, in order to become a better advocate.

They are both right.

During the Clinton Years, gun rights advocates learned that betrayal from within was possible.  Smith and Wesson cut a deal with the administration, hoping for preferential treatment.  One of the gun industry?s lobbyists, Rob Ricker, switched sides, testifying against his former clients in court.  The CEO of Ruger, a major firearms manufacturer, proposed a major component of the Assault Weapons Ban.  Even the NRA, feared and reviled by anti-gun forces everywhere, has had occasion to offer compromises or capitulation to gun-grabbers.  Consistently, these betrayals came not from the rank and file, but from the firearms industry ? where people made money from firearms without perhaps understanding the whole picture.

The rank and file gun owners couldn?t do much about it at first, but with the rise of the Internet, news of such betrayals could spread quickly and broadly enough to make action possible.  The gun control issue is still hotly debated, and our rights remain at serious risk.  But now, when one of our own makes a misstep, we understand the damage it can do and react quickly to minimize it.  In Zumbo?s case, that means we have to take him out behind the woodshed for a bit. 

If he wants to learn about ARs and correct his error, he?ll be welcome.  After spending 40 years writing about hunting, I would hope that he has the skills and talent to learn a few new tricks? and explain them to his readers.  But that?s something he?ll have to do later.  Right now, he?s proven that he cannot be trusted to be a public face for gun owners.  He?ll have to earn that trust back before he?ll have any readers.  That will take time and effort, and he will be judged on the results of his efforts.  Winning back someone?s trust after a betrayal is not easy and not certain.

We?ll see what he has to say in a year or two.

But the reason we have the opportunity to say this is due solely to the vast improvements in discipline among gun owners.  The schism that Zumbo put his foot so unexpectedly into is growing steadily smaller.  Not because of Zumbo?s excommunication but because of his example.  Even those who feel the same way he did will look at what happened to him when he offered that view in public ? and will make an effort to present a united political front because of it. 

Fri Mar 09 22:27:29 CST 2007 by TriggerFinger. Comments [Tweet]

Give Them Back

Video of gun confiscations in New Orleans, following Katrina.  For those who think it will never happen here.

Fri Mar 09 22:27:00 CST 2007 by TriggerFinger. Comments [Tweet]

Kudos

to David Codrea, for single-bloggedly forcing the FCC to roll back their collective-right interpretation of the 2nd Amendment.  I guess he just likes to prove that you?re not hopeless even if you are helpless.

Fri Mar 09 22:26:18 CST 2007 by TriggerFinger. Comments [Tweet]

Answering a different question?

I ran across some research results that purported to examine why it is so difficult to muster public will to stop genocide.  It was a reasonable bit of research journalism, with the core findings and methodology described in the article.  (Tellingly, the article claims to have been adapted from a press release by the researchers themselves; no wonder it actually contained useful information?).  But when I thought about the results, I realized that their research had produced more answers than the scientists had thought to look for.

The key finding was that the emotional response to need is limited starkly by the number of people in need.  Present one person needing medical help, for example, and you might get a solid emotional response along with donations for aid.  Two people, and you?ll get a lesser response.  And so on.  Even if you take a relatively small number, and present detailed personal information on each person, you?ll still get a reduced response for a larger group.  To use an illustrative but made-up example, people who gave a dollar to help one poor child might give 50 cents to help two and 25 cents to help three.

So what does this tell us, aside from the obvious problem that lots of lots of genocide victims don?t inspire as much sympathy as a single victim?

It tells us why free markets and charity work when socialism and welfare do not.

Put simply, the appeal for charity from one person is a manageable, personal need that invites a personal response and has a significant chance of a visibly positive outcome.  One person can help one person.  But it?s a lot harder for one person to help thousands or millions of people.

Fri Mar 09 22:25:33 CST 2007 by TriggerFinger. Comments [Tweet]

Oh dear god?

We?re the government, and you're not.

Fri Mar 09 22:23:41 CST 2007 by TriggerFinger. Comments [Tweet]

24,167 signatures and climbing...

... on a petition opposing HR 1022, an expanded and more evil "assault weapons" ban.

Fri Mar 09 22:22:49 CST 2007 by TriggerFinger. Comments [Tweet]

Back, with a vengeance...

I resurrected the old site because, suddenly, all of my old Parker v DC material is relevant again... in a big way.

Fri Mar 09 22:20:28 CST 2007 by TriggerFinger. Comments [Tweet]

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