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The WaPo decries the striking down of the DC gun ban (update)
Posted by: McQ on Saturday, March 10, 2007

Today's Washington Post editorial decries the audacity of the DC Circuit Court of Appeals decision to strike down the District of Columbia's 30 year old gun ban, calling it a "radical ruling" which will lead to "more people killed and wounded as keeping guns out of the city becomes harder."

It's an indefensible point, since gun crime is rampant in the city as it is. And, assuming the ban was successful in keeping law abiding citizens from having hand guns in their homes, it seems clear that a) the problem hasn't been those obeying the law and thus b) it shouldn't necessarily lead to 'more' people being killed since they weren't doing all the killing with guns in the first place.

But, that relatively small point aside, I astonished by the fact that the Washington Post believes a finding for individual rights is a "radical ruling".
The court grounded its unprecedented ruling in the finding that the Second Amendment right to bear arms extends beyond militias to individuals. The activities the Second Amendment protects, the judges wrote, "are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or continued intermittent enrollment in the militia."

Never before has a law been struck down on that basis. The Supreme Court, in its landmark 1939 decision United States v. Miller, stated that the Second Amendment was adopted "with obvious purpose" of protecting the ability of states to organize militias and "must be interpreted and applied with that end in view." Nearly every other federal court of appeals has concurred in that finding.
Well as we found out in the Dred Scott case, just because the Supreme Court has always found a certain way doesn't mean that certain way is right. And in this case, to those who've taken the time to look, it certainly doesn't seem to be right.

Despite the Washington Post's attempt to claim that the 2nd Amendment "was adopted "with obvious purpose" of protecting the ability of states to organize militias", any time spent reading about the purpose of the Bill of Rights or the intent of the time concerning the 2nd Amendment disabuses a person of the notion it was all about militias.

As I pointed out in a post last year, when discussing this very case, there is a lot available in some very credible texts which argues against the position of the Washington Post and for the right of an individual to keep and bear arms as a fundamental and irrevocable right.

Some of the best indicators of this intent are, interestingly enough, to be found in the state constitutions of the time.

George Mason wrote, in the Virginia Declaration of Rights of 1776 the provision "that a well regulated Militia, composed of the body of the people, trained to Arms, is the proper, natural and safe Defense of a free State".

It must be remembered that at that time, there was to be no standing army and the militia was comprised of all able-bodied and free men.

Thomas Jefferson proposed the VA Constitution contain the provision "No freeman shall be debarred the use of arms".

The Pennsylvania Declaration of 1776 stated "that the people have a right to bear arms for the defense of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up."

North Carolina's Declaration of Rights (1776) said "that the people have a right to bear arms ...".

Vermont's Declaration of Rights of 1777 declared "that the people have a right to bear arms for the defense of themselves and the state".

John Adams who framed the Massachusetts Declaration of Rights (1780) wrote "arms in the hands of citizens [may] be used at individual discretion ... in private self-defense".

And Noah Webster, an influential Federalist made the salient point that seems to get lost in all of these discussions of "militias" and such:

"Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a superior force to any band of regular troops that can be, on any pretense, raised in the United States".

Webster's point is clear even if, as technology has advanced and standing armies have been raised, his point about the armed population being a superior force is not as true now as it was when he said them.

I'll give Richard Henry Lee that last word concerning intent:

"The yeomanry of the country possess the lands, the weight of property, possess arms, and are too strong a body of men to be openly offended — and, therefore, it is urged, they will take care of themselves, that men who shall govern will not dare pay any disrespect to their opinions."

Remember, the Bill of Rights was approved by the same states and many of the same men who I cite above. Intent, in this regard, is clear.

It was about self-defense, it was about the defense of the state and, probably as important as the other two, it was a warning to the federal government that as long as the citizens retained their right to arms, they would keep it's power in check.

Since when is a ruling which reflects the thinking and intent of those who wrote the amendment and voted it into law suddenly radical?

UPDATE: More quotes from our founders concerning intent.

James Madison:
For instance, in Federalist 46, Madison, is very concerned about an abusive federal standing army argued that against it "would be opposed a militia amounting to half a million citizens with arms in their hands." Obviously he wasn't talking about a "well regulated militia" when he made that statement, but just as obviously, it is apparent that he expected every citizen to be armed. And, when he said, "the advantage of being armed, which the American's possess over the people of almost every other nations" , he was talking about opposing government tyranny, because as he noted, "notwithstanding the military establishments in the several kingdoms in Europe, which are carried ar far as the public resources will bear, the governments are afraid to trust the people with arms." His contention was that it should be a right in the US.
Theodore Sedwick:
Theodore Sedwick of Massachusetts wasn't as concerned about the possible problems of a standing army, but assumed this to be no problem because of the right to bear arms. He stated, that he doubted that a standing army, "if raised, whether they could subdue a nation of freemen, who know how to prize liberty, and who have arms in their hands."
William Lenior:
William Lenior worried that Congress could "disarm the militia. If they were armed, they would be a resource against great oppressions...If the laws of the Union were oppressive, they could not carry them into effect, if the people were possessed of proper means of defense."
Patrick Henry:
Patrick Henry argued, "the great object is, that every man be armed...Everyone who is able may have a gun."
George Mason (again):
And, Mason also clarified that under the prevailing practice, i.e. that is, when the 2nd Amendment was written, the militia included all men, rich and poor. "Who are the militia? They consist now of the whole people, except a few public officials".
Zachariah Johnston:
Zachariah Johnston had another worry, and argued that the new Constitution could never result in religious or other oppression because "the people are not to be disarmed of their weapons. They are left in full possession".
And, Samuel Adams (like his beer? You'll love his words here):
Samual Adams then proposed "that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States from keeping their own arms."
 
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Comments
Ok, WAPO is WACCO, about gun control. I thought very one knew that. The continued support of “GUN CONTROL” is a denial of reality. An armed citizenry actually results in a reduction of crime. Despite numerous studies documenting this reality, many still swallow the canard “Guns are Bad”.

For a great example of what happens when honest citizens are disarmed by the Government, you only have to look at Australia today. An unarmed populace is being terrorized by armed thugs, with no way of fighting back.
 
Written By: James E. Fish
URL: http://
Wow... Great Richard Henry Lee quote...

"that men who shall govern will not dare pay any disrespect to their opinions."

It just shows how far we’ve come... The men who "govern" today pay no respect to our opinions.
 
Written By: Brad Warbiany
URL: http://thelibertypapers.org/
The editorial is also disingenuous. The opinion itself dealt extensively with Miller, as well as the other prominent opinions on the subject. The WaPo gives the impression that the Court just thumbed its nose at all that stuff with comments such as
willful disregard of Supreme Court precedent.
Not so. Read the opinion. Well, I guess I am assuming that they read the opinion before condemning it. Perhaps an unwarranted leap.
 
Written By: Jinnmabe
URL: http://
Since when is a ruling which reflects the thinking and intent of those who wrote the amendment and voted it into law suddenly radical?

Since the sixties.
 
Written By: Scott Crawford
URL: http://
Can we ever have the progressive society if citizens are allowed to remain armed? Crank up the legal think tanks for the appeal on this one; also I want tons on the Dred Scott angle. Dred Scott in every treatment. Also, see if the WaPo or the NYT wants to handle this - probably the Post since the ruling is in D.C. See if Erb wants to handle the ’net; he can tie in with the anti-military angle. Let’s go people! Oh! And let’s find out if Bush appointed any of the these judges; God, wouldn’t that be good? Also, get the investigators going on running down anthing negative on the majority judges; you know, sex, crazy speeches in church, kleptomania... we need everything we can get on this one.

sarcasm/humor alert
 
Written By: notherbob2/robert fulton
URL: http://
When the WaPo editors fulminate over “the unconscionable campaign” by the NRA and Bush administration “to broadly reinterpret the Constitution so as to give individuals Second Amendment rights,” they’re clearly denouncing the interpretation of those rights as belonging to anyone or anything other than the well regulated militia of Second Amendment fame. But it’s their use of the verb “to give” that really reveals their problematic thinking and, to my mind, debased understanding – misunderstanding, really – of what individual rights are and where they come from. Individual rights are not manufactured and apportioned by constitutions. At best, they might be recognized, enumerated, and defended by such, but even that’s not worth much when a populace forfeits, forgets and, worst of all, fears them.

Also of interest to me in the editorial was the sloppy characterization as “myth” the NRA’s argument that, with the DC ban, “only criminals have had guns in the city.” Huh? I guess it’s true that the police have had guns legally under the ban, but how can the WaPo contend that a defense-minded homeowner hiding a gun wasn’t a lawbreaker? And would they argue that their crime rate doesn’t show real criminals running amuck brandishing guns aplenty?

Very high-pitched editorial indeed. Those WaPo editorial people need to take a couple of deep breaths and try to oxygenate whatever parts of their brains might actually harbor rational thought.

Great post, McQ.
 
Written By: Linda Morgan
URL: http://
This past week contained the 150th anniversary of the Dred Scott case.
 
Written By: Neo
URL: http://
This is the perfect simile for the WaPo on this issue:
"A bellwether is any entity in a given arena that serves to create or influence trends … The term is derived from the Middle English bellewether and refers to the practice of placing a bell around the neck of a castrated ram (a wether) in order that this animal might lead its flock of sheep," according to Wikipedia. Egad. Castrated rams leading flocks of sheep. Could there be a more perfect metaphor (sic) for the MSM shaping the "opinions" of the clueless among us?”
 
Written By: notherbob2/robert fulton
URL: http://
McQ:

Your comments are well taken, and quite correct. I must say, that I am encouraged by the ruling, and unsurprised by the response from the left.

Before, however, we get too carried away with how important a ruling this is, let me say that the history of the left is one of ignoring those parts of the constitution they don’t like. Similarly they also tend to ignore rulings on said constitution that they don’t like. Rulings that would fundamentally change the game away from them.

I would suggest a quick reading of the history of the Beck decision, for example. You may notice if you look very closely that unions are still demanding and getting monies for political candidates the protests of their rank and file notwithstanding.
 
Written By: Bithead
URL: http://
Similarly they also tend to ignore rulings on said constitution that they don’t like. Rulings that would fundamentally change the game away from them.

It’s not Liberals Bithead, it’s HUMANS...persue a history of the Civil Rights Movement and you’ll see the same level of obstruction. As President Jackson said, "Mr Marshall has made his decision now let him enforce it...."In the CRM’s case it was enforced, in others less so. I simply say this not to exonerate the Left, but to say it’s a very human instinct.
 
Written By: Joe
URL: http://
.persue a history of the Civil Rights Movement and you’ll see the same level of obstruction
And it’s your opinion, that the goals of the "civil rights movement" were within the boundaries of the constitution as we understood that the time? Or was in fact the "civil rights movement" an expansion on original intent?

You see, I have been firmly convinced for many years, and have yet to see anything to alter the perception, that equal rights was not the target of this movement, but rather, equal outcome, Particularly considering the monstrosity that it has evolved into, with hangers on such as Al Sharpton and Jesse Jackson.

 
Written By: Bithead
URL: http://
McQ,

I think you give relatively short shrift to countervailing constitutional arguments here. There have been literally hundreds of scholarly articles written on this subject and, suffice it to say, strong arguments can be made for either interpretation. It’s also probably worth noting that the bill of rights itself was originally envisioned as putting limits on the federal government, not the states. The fact that much of the bill of rights currently applies to states is a result of a strange doctrine called "incorporation" whereby some—but not all—of the bill of rights are said to have been "incorporated" by the 14th amendment so that they now apply to the states. Interestingly, the Supreme Court has never held that Second Amendment was incorporated by the 14th amendment, so it’s not clear that this ruling would even apply to laws passed by states (and would therefore be irrelevant outside DC).

The bottomline, though, is that it is more than a little hypocritical for conservatives who constantly complain about "activist judges" to celebrate this ruling, which takes a rather novel and broad interpretation of the 2nd amendment and uses it to strike down a law which has been on the books for a long time. This is exactly the sort of ruling conservatives would be denouncing if it involved any other amendment but the 2nd (and yes, I’m aware that hypocrisy cuts both ways).
 
Written By: Anonymous Liberal
URL: http://www.anonymousliberal.com
There have been literally hundreds of scholarly articles written on this subject and, suffice it to say, strong arguments can be made for either interpretation.
Well AL, if you’re worried about short shrift, trot some out. "Literally hundreds of scholarly articles" doesn’t cut the mustard.

All I’ve done is use the words of those who founded the country and wrote the amendment in question to try to discern their intent. Seems fairly clear their intent was to ensure the right of the people to keep and bear arms on an individual as well as collective basis (militia).

The context of the period in which the amendment was written, given the distrust of a standing army and a real concern that the people should have the power to oppose their own government by force of arms should they feel it necessary, not to mention the right of self-defense, there seems little doubt of how they perceived the right.

And it seems, yesterday, that the DC court arrived at the same conclusion. I say bravo for them. It’s about time (and if you read the article, the 5th Circuit also supports that interpretation although their discussion is found only in dicta).

All of that that’s obviously a different subject than what the Supreme Court has found over the years or what "scholars" have determined. But then, that wasn’t the intent of my post.
The bottom line, though, is that it is more than a little hypocritical for conservatives who constantly complain about "activist judges" to celebrate this ruling, and broad interpretation of the 2nd amendment and uses it to strike down a law which has been on the books for a long time.
All I can say is obviously didn’t read the quotes above. Broad? Hardly. Dead on as I see it. Activism, as I understand it, deviates from intent. This ruling, given the quotes above, nails it.

Does it at all occur to you that perhaps the activists were those who ruled prior to this ruling?
 
Written By: McQ
URL: http://www.qando.net/blog
the right of the people to keep and bear Arms, shall not be infringed.
This ruling is actually a very strict interpretation of the words found above.

Just as an example of what conservatives decry as a broad interpretation, look at the following:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Speech and press are considered as seperate activities. There is no reasonable argument that burning a flag is more closely related to the spoken word than the printed word is, but that is the interpretation currently used. I don’t write this to bring up a debate on flag-burning, merely to show what a ’novel and broad’ interpretation really is.
Of course, even strict interpretations of the Constitution haven’t been upheld for a long time, otherwise a number of famous liberals would have been convicted of Treason in the last fortysome years.
 
Written By: Ted
URL: http://
McQ,

It’s important to keep in mind that this is just the ruling of one circuit panel in one circuit court. Virtually every other circuit (except the 5th) has come to the opposite conclusion. I don’t feel like doing a Westlaw search for all the scholarship on this issue, but for a good, well-reasoned article taking the majority position, I recommend this article by Professor Michael Dorf of Columbia.
 
Written By: Anonymous Liberal
URL: http://www.anonymousliberal.com
It’s important to keep in mind that this is just the ruling of one circuit panel in one circuit court.
Yes, I understand that AL. I also understand that the way they ruled does something no other ruling has done ... forces the SC, if they accept the case, to directly rule on the 2nd Amendment. Something they’ve been avoiding for decades.
Virtually every other circuit (except the 5th) has come to the opposite conclusion.
Two words: Dred Scott.

The fact that virtually every other circuit has come to an opposite conclusion doesn’t mean they were right or weren’t, in fact, the activists in all fo this.
 
Written By: McQ
URL: http://www.qando.net/blog
”…it is more than a little hypocritical for conservatives who constantly complain about "activist judges" to celebrate this ruling, which takes a rather novel and broad interpretation of the 2nd amendment and uses it to strike down a law which has been on the books for a long time.”
Close, AL. Had the founders ever used the concept of “penumbra” or “aura” you would have scored a very strong point here. As it is… no cigar. A common failing of liberals, going right past a mere niggle like that. Ooops! Do I have to go to rehab for that? Thank God I am not addressing the CPAC.

Further, your reasoning is the same faulty reasoning used by liberals to decry a still-positive increase in funding (but a lower rate than last year’s increase) as a “cut” in funding.
 
Written By: notherbob2/robert fulton
URL: http://
Thanks for the link, AnonLib. I’m almost halfway through. Although a lot of things bug me about Mr. Dorf’s argument, I really don’t have time to go through all of them at the moment.

For now, I’ll say this: Mr. Dorf states early on (around page 10 or 11 IIRC) that individual right advocates simply face a heavy persuasive burden in light of previous rulings. The rest of the document, up to page 27 at least (where I am now), seems to be muddying the waters or throwing up hurdles to make that challenge difficult, rather than providing his own solid logic for a single alternative interpretation.

For what it’s worth, he certainly does make an honest individual right advocate think hard.
 
Written By: Bryan Pick
URL: http://www.qando.net
The fact that virtually every other circuit has come to an opposite conclusion doesn’t mean they were right or weren’t, in fact, the activists in all fo this.
That’s right, I forgot that "judicial activism" is simply code for "rulings that conservatives don’t like."

Look, I have no problem with the argument that the 2nd amendment should be interpreted to provide a broad individual right to bear arms. It’s an honest argument. But even the legal scholars who advocate it (e.g. Euguene Volokh) don’t think it’s a slam dunk. In order to read the amendment that way, you pretty much have to ignore its preamble ("A well regulated militia being necessary to the security of a free State"). There’s an argument for doing so, but it’s hardly a straight-forward textual argument, as Dorf ably points out in his article. There’s just no getting around the fact that the D.C. Circuit’s interpretation of the amendment involves striking down a long-standing and popular law based on some highly ambiguous text in the constitution. There’s a case to made for doing that, but it’s pretty hard to deny that such a move would be decried as "judicial activism" if it involved any other amendment.
 
Written By: Anonymous Liberal
URL: http://www.anonymousliberal.com
"...popular law..."
Your apparent long-standing presence in the liberal bubble has, no doubt, prompted this mis-statement.
 
Written By: notherbob2/robert fulton
URL: http://
That’s right, I forgot that "judicial activism" is simply code for "rulings that conservatives don’t like."
Whereas "judicial activism" for a liberal is simply code for that which a liberal doesn’t like?

Brilliant argument, AL.
But even the legal scholars who advocate it (e.g. Euguene Volokh) don’t think it’s a slam dunk.
No one here has said it is a slam dunk either, so that’s obviously a red-herring.
There’s an argument for doing so, but it’s hardly a straight-forward textual argument, as Dorf ably points out in his article.
No one here has claimed there was a "straight-forward textual argument" AL ... another red-herring.

What was provided here was perspective and context, something you seem willing to ignore.

The fact that various courts have, in the past, ruled in a particular way also points to a willingness to ignore much of what was said when this all began. What the DC Circuit does is refocus the debate, and for me, that’s a good thing.
There’s a case to made for doing that, but it’s pretty hard to deny that such a move would be decried as "judicial activism" if it involved any other amendment.
If deriding something as "judicial activism" which would clearly not be judicial activism is the worst outcome of this, I can live with that.
 
Written By: McQ
URL: http://www.qando.net/blog
The textual argument is more straightforward than Dorf admits, AnonLib. The Department of Justice made a pretty good case in 2004. For example, the argument about the "well regulated militia" phrase goes like so: preferatory subordinate clauses may inform interpretations of what follows them, but do not qualify or limit what follows. Dorf spends some time trying to muddy the waters on this point, but he has to stretch harder than his opponents do.

Dorf also calls in some quotes of the "founding fathers" (my biggest problem is with how he treats Madison’s words, of all people) without providing context that would elucidate the framers’ intent. I don’t want to speculate on his motives, but he treats the historical issues as being more cloudy than they are. That strikes me as either ignorant or dishonest, and I lean toward ignorance because Dorf admits to being an amateur regarding the history behind the issue.

The historical method of interpretation can inform the decision more than Dorf is willing to admit. I won’t pretend that the historical method can cover everything—I lean more toward Philip Bobbitt in Constitutional Fate than I sometimes let on—but even my amateur knowledge of history tells me things that make me seriously doubt that Mr. Dorf’s telling the whole story.
-=-=-=-=-=-
As for the question of defining what an activist judge is, it may be true that most characterizations of "activist judges" are made by those who just happen to disagree with the decision, but I’d argue that judges who are quick to dismiss methods of interpretation that can obviously inform their decision, or whose selectiveness in citing evidence and confronting contrary arguments seems pretty rank, can be safely called "activist." Those who develop whole new doctrines and reach to assert powers that are not enumerated in the Constitution may also be called "activist." And finally, those who cite the law of other countries (especially countries other than pre-1787 Britain) as justification for their own interpretations seem pretty "activist" to me.

One can make an argument that those who simply abandon the limited-government ethos of the Constitution are also "activists".
 
Written By: Bryan Pick
URL: http://www.qando.net
"...it’s pretty hard to deny that such a move would be decried as "judicial activism" if it involved any other amendment."
And are you "for" or "against" such "judicial activism"?

Just to get you on the record.
 
Written By: notherbob2/robert fulton
URL: http://
McQ: "No one here has claimed there was a ’straight-forward textual argument’ AL ... another red-herring."

Me, very shortly thereafter: "The textual argument is more straightforward than Dorf admits"

Heh. Someone could almost poach that for ’gotcha’ points. Just want to reiterate that I don’t think the textual argument solves everything. But it’s far more straightforward than many critics assert.
 
Written By: Bryan Pick
URL: http://www.qando.net
It appears the line between red herring and strawman, is fine indeed
 
Written By: darohu
URL: http://
"It appears the line between red herring and strawman, is fine indeed."
Yes, "Casablanca" was, indeed, a fine movie.

 
Written By: notherbob2/robert fulton
URL: http://
I don’t mean to be snarky, but has anyone in the current discussion actually read the opinion we’re discussing? It’s very easy to read, Silberman seems to have made a point of making it accessible and he mentions all the standard arguments that we’re seeing.

McQ said:
It’s about time (and if you read the article, the 5th Circuit also supports that interpretation although their discussion is found only in dicta).
The article misled you about the dicta. See Prof. Volokh’s discussion here and here.
 
Written By: Jinnmabe
URL: http://
" Every terrible instrument of the soldier is the birthright of an American. The unlimited power of the sword is not in the hands of either the federal or state governments, but where I trust it will ever remain, in the hands of the people." - Tench Coxe, Continental Congress
Just a stick in the eye to the folks who think the 2nd is only about handguns and shoulder arms.

It is about every item of military utility.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://

 
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