Shooting at Johnson Space Center

<div class='quotetop'>QUOTE(fshagan @ Apr 23 2007, 05:29 PM) [snapback]428715[/snapback]</div>

We may be in violent agreement on this. The post that I responded averred that the Supreme Court had repeatedly upheld the absolute right of individual citizens to bear arms. I know of no such decision.
Gun control laws, as you pointed out, are almost never challenged on 2nd amendment grounds (gee, I wonder why). The cases I alluded to are kooks who tried to defend their activities as protected by the 2nd amendment. They always lose. (Sorta like the guys who claim they don't have to pay federal income tax.)

 

<div class='quotetop'>QUOTE(pogo @ Apr 23 2007, 06:07 PM) [snapback]428769[/snapback]</div>

Historically, there hasn't been much debate about whether or not the Second Amendment was talking about individuals or state-organized militias.

The Supreme Court hears cases that are in dispute, and referred up to it. In the case of the Second Amendment issues, there just haven't been cases that get that high. Now there is. The most recent 2 - 1 decision in the DC district invalidated all of their handgun control laws, with specific language that said it violated the 2nd Amendment (and not the 4th "equal protection" clause). The case is Parker v. DC. Parker sued because she feels threatened living in the District and not being able to buy a gun to protect herself. The court agreed, and specifically reverses the lower court's upholding of the District's contention that the Second Amendment refers to the collective right of a state to have a militia. The plaintiffs argued that:

The decision goes on to state, in some detail, the District's contention that the Amendment applies only to regulated militias, such as National Guard units, or to a "citizen militia" that no longer exists. But the decision sums up the long discussion about whether the Second Amendment is a personal right or a collective right (or something in-between) by saying:

In other words, not only is the Second Amendment a personal right, but since the passage of the 14th Amendment, it is even MORE of a personal right.

For the text of the decision see http://pacer.cadc.uscourts.gov/docs/common...03/04-7041a.pdf

The Department of Justice issued a clarification on the Second Amendment that also asserts it as a personal right: http://www.usdoj.gov/olc/secondamendment2.pdf

The 5th District also found the same thing ... specifically mentioning the 2nd Amendment, back in 2001 in US v Emerson (see http://www.ca5.uscourts.gov/opinions%5Cpub...331.cr0.wpd.pdf for the court's decision). In Emerson's case, he fought a charge of illegally having a pistol on 2nd Amendment grounds, and had the charges thrown out.

Both of these cases assert an individual right to carry arms, and the DC case may well find its way to the Supreme Court soon. The language of the 14th Amendment cases decided by the high court already, that reference the meaning of "the people" and specifically mention the Second Amendment along with the other's declaring the rights of "the people" (meaning citizens) provides a view to what I think the Supreme Court will decide.

 

<div class='quotetop'>QUOTE(fshagan @ Apr 23 2007, 08:44 PM) [snapback]428824[/snapback]</div>

This is a 2-1 decision by a panel of the Court of Appeals, not the entire court seating in banc. That hardly makes it the settled law of the land. The justices do note that a Court of Appeals in another circuit reached a contrary conclusion.

<div align="left">One of the first lessons taught in law school is to read the dissenting opinion, as it is likely to be tomorrow's majority opinion. This is what the dissenting justice had to say:</div>
<div align="left">

</div><div align="left">I'll repeat what I have written earlier, neither side wants this issue to be decided by the Unites States Supreme Court because both sides are not confident that they will prevail and they do not want to make bad law (from their perspective).</div>

 

<div class='quotetop'>QUOTE(IsrAmeriPrius @ Apr 24 2007, 02:39 PM) [snapback]429335[/snapback]</div>

Interesting. Are you saying that the only valid decisions of the Appeals Courts are the ones made "en banc"? I'm not a lawyer, so I am interested in your legal opinion on this point.

<div class='quotetop'>QUOTE(IsrAmeriPrius @ Apr 24 2007, 02:39 PM) [snapback]429335[/snapback]</div>

That could be the case. As to minority opinions having validity, I suppose it is important to know all the arguments. But in the case of deciding where you think the court will go, would it make more sense to look at the opinions of the individual justices, given that we seem to have a de-facto Kennedy court now that OConnor has left the scene (and been replaced by Alito)?

It looks like the DC Circuit decision will be appealed to SCOTUS so we have a chance that the first direct test of the 2nd Amendment in many, many years could come up in the next few years.

 

<div class='quotetop'>QUOTE(fshagan @ Apr 24 2007, 08:19 PM) [snapback]429512[/snapback]</div>

No. It is still valid but it is binding only in the particular jurisdiction of that one appellate court. In other words, only the trial courts in the District of Columbia must follow this holding, for all others, it is optional. Being that it is a split decision of one panel of one appeals court does not make it likely to be followed by other circuits. It makes it a lot less persuasive and gives it less gravitas than if it were decided by a unanimous panel or rendered by the complete DC Court of Appeals. I am not sure if a petition for a rehearing by the court en banc has been filed. Generally, that it the next step.

I stand by my opinion that this will not be appealed to the Supreme Court as neither side is confident that it will win and both do not want to make bad law from their perspective. That is the main reason why the Supreme Court has never decided the issue of collective v. individual right. With the court's recent history of ruling on controversial subjects only when it has absolutely no alternative (Roberts strives for consensus on court, Roberts Calls for Consensus on Court), my educated guess is that the court will follow the rationale of the dissent in Court of Appeals ruling, should this case ever get there, and hold that the Second and Fourteenth Amendments do not apply to the District of Columbia, since it is not a state.