Appeals Court Overturns D.C. Gun Ban

[denton]

Lots of posting on this over at www.volokh.com.

I'm definitely not an attorney, so treat the following accordingly:

This is now the highest stakes poker game the country has had on gun rights in a long, long time. Both the 5th Circuit and the DC Circuit have delivered very carefully documented and well reasoned opinions supporting an individual right. The 9th Circuit has rendered an opinion that simply declared that the 2nd amendment granted a collective right, with no supporting facts or reasoning. Most of the other circuit courts have ruled in favor of the collective right theory.

If this goes to the Supreme Court, and the ruling is in favor of the individual rights interpretation, the anti-freedom lobby loses big time, and probably PERMANENTLY. Once the individual right is established, laws restricting firearms can only be passed or maintained if it can be shown that the government has an overriding interest at stake.

The opposite does not exactly apply if the Supremes hold that it is a collective right. The legislative tide may be mixed, but is definitely running in our favor. That can continue after an adverse Supreme ruling. An individual right could theoretically be granted by federal legislation. So I think the anti's may have more to lose on this one. So they may take their loss, and not file an appeal or even ask for a hearing by the full DC Circuit.

In the event that it does go to the Supreme Court, and we do win, it is a huge victory, but it does not immediately sweep away all the bad laws. For example, there are two examples on record of people being arrested at an NY airport, as they changed planes and re-checked their bags with firearms in them, in absolute, direct, open violation of the "travelling" immunity granted by FOPA. New York will lose the suits that follow, and will have to stop the practice. That will be the course for many of the bad laws on the books. Someone will have to challenge them and win, before they go away. It will be a long grind, and will take decades. However, if we ever get an individual rights stake through the heart of this issue, the long term outcome is inevitable.

BTW, there is a serious consequence of the collective rights theory that seldom gets mentioned: The National Guard is not a state run organization. It is funded, equipped, and directed by the federal government. If you believe the collective rights view, you also have to believe that individual states have the right to keep and maintain their own state armies, independent of the US military, and in direct violation of Section 10 of the US Constitution. You have to believe that in passing a "collective rights" item in the Bill of Rights, the Founding Fathers either did not notice this conflict, or didn't care about it. I see no way of resolving that conflict while maintaining a collective rights interpretation.

[fabsroman]

denton,

I am an attorney and what your wrote sounds really spot on. Thing is that most people (e.g., antis) only see what they want to see. They see a single "sniper" attack with an AR-15 wherein the assailants were shooting the gun out of a hole cut in the trunk of a vehicle with pillows all around the gun to keep the sound down, and they think that assault weapons need to be banned and there should be no 30 round clips available. Hello, the AR-15 in this case wasn't even used as an "assault weapon". The shots were not long shots and they were generally single shots. The guy could have had no clip whatsoever in the gun and still made the shots. The police also botched the investigation up, which resulted in a couple more deaths before the perps were caught. Maybe we should pass a law requiring law enforcement to have a certain GPA before they get hired. Maybe we should pass a law increasing LEO's salaries so that we can have better LEO's. Some of the LEO's I meet are dumber than a box of rocks. One of them that lives in my neighborhood tried to back her Crown Vic patrol car over a 2 foot high mound of snow into its designated parking spot right next to her townhouse, and she couldn't understand why it was stuck. She was digging under the tires when the car's frame was stuck on top of the snow and the tires were merely dangling there useless. I spent an hour digging her out and really wished I had a winch or a chain for my truck at the time.

Not that gun control isn't an important issue, but I think Congress has a lot more important things to do than to spend time trying to pass a gun ban of any type. When crime and guns become as big an issue as the economy, health care, and retirement, which effects almost every American I know, then Congress should spend a lot of time trying to figure out what it should do with the gun issue. Maybe, just maybe, if the inner city kids weren't living in poverty, things would be a lot better all the way around and they wouldn't be shooting one another left and right or stealing from everybody and their mother. Politicians make me sick.

[skeet]

As Fabs said ,I think you are pretty much on with your assessment I really think the anti's will want to leave this alone. If they appeal it as many think they will do the Supremes will probably have to go along with all the prior rulings in the past concerning individual rights given in the 2nd amendment. If the papers(Federalist papers) that have been compiled from the era of the writing of the constitution are ever read and understood the Supreme court would have to go with individual rights. It is so clear.

Now as to the idea that the congress will not try to pass any real gun control laws. Fab's I think you are wrong. The liberal people in congress feel that after the last election, they have a mandate to make these "Needed" laws. They want them so we must "need" them. They will never stop, Fabs. And I feel you know that. And as far as the Assault weapon bill in Md....best if you go buy an AR right now. You DO know what the political climate in Md is like...as do I.

[fabsroman]

Skeet,

The bill has been introduced every year since the sniper shootings in 2001, and it has failed every year. I am hoping that is the case this year too. However, I have the funds set aside to buy AR-15 and AR-10 lowers should the need arise. In fact, I am about to post something about the lowers on here because I need some advice on what options to get, but that will have to wait for another time when I have more time to do the research and post informed questions.

[skeet]

I was at a gun show this weekend and bought and sold a DPMS Sporter that was NIB. Made a couple hundred on the darn thing. I woulda kept it but I already have a Bushmaster varminter. I also think I like the Bushmaster a bit better. The bbl on mine is a little longetr and fluted to reduce the weight somewhat. I almost sold my Colt Sporter but decided to keep it...for the time being. I still wanna buy a Barrett.

Fabs you know the political climate changed in Md with the new Liberal mandate? They will never stop trying.

[TheeBadOne]

Since police officers take a lot of flak when one of their lot does wrong, I think it is only fair to take notice when one of them does right. Especially when one of them is almost single-handedly responsible for the recent victory in Parker v. District of Columbia that is a huge decision in its own right and may well go to the Supreme Court.

First, you need to understand the concept of "standing" as used by the courts. The requirements for standing are as follows:

1. Must show personal injury (actual or threatened) as a result of putatively illegal conduct.
2. Injury can be fairly traced to challenged action and is likely to be redressed by a favorable decision

You must meet both of these requirements or the court will simply refuse to hear your case on thr grounds that you have no standing. This is exactly what happened to a similar case in DC that the NRA started (Seegars). Using a stricter standard for standing than other circuits (a standard set by another gun case Navegear (a maker of the Tec-9 who sued after the 1994 ban)), the D.C. Circuit court determined that none of the plaintiffs in Seegars had standing because none of them had been arrested or even threatened with arrest yet. As a result, they had no personal injury according to the court.

Parker came within a hair of going the same way. The one thing that saved it is that D.C. Special Police Officer Dick Heller had applied for a D.C. firearms permit for his home and been denied by the city. The denial of a license or a permit was held by the D.C. court to give standing to all of the complaints in Parker, so Parker succeeded where Seegars failed.

Now Mr. Heller was a police officer. He already had a firearm. He could have very easily relied on his fellow officers and ignored the law. Instead, in a situation where the city of D.C. was his employer and all kinds of political pressure could be brought to bear on him, he did the right thing and signed on to the Parker lawsuit as a plaintiff, basically suing his employer. I don't know what life is like for a police officer who goes against the wishes of his top bosses in a public and dramatic fashion; but I bet it wasn't fun for Mr. Heller.

Here we had a man who had an easy way out that would give him what he wanted, who instead took the harder road and stood up for all of us. So let's give him credit for his work.

[fabsroman]

TBO, let me start by saying that there are plenty of good police officers out there, probably the majority, but I still think we can do better by attracting better qualified people with higher paying salaries, and/or retaining the better candidates by paying higher salaries. The problem with bad police officers and bad judges is that they have so much power. That is what makes it scary. Sames goes for bad politicians.

Now, on to the standing issue. I was reading some of the pleadings the other day, and there was a motion directly related to this issue where the government was trying to have the case dismissed for a lack of standing. The Plaintiffs' reply was that there had been threats made in open Court that the government would prosecute these 6 people if they broke the law, and there were also statements made elsewhere in I believe newspaper interviews and between attorneys wherein the government said it would pursue these charges if the Plaintiffs broke the law. That gave the Plaintiffs standing for this case. Now, I will admit that I didn't read all of the pleadings in the case, and I didn't even read the Judge's ruling (i.e., Order) on the Motion to Dismiss, so I could be a little off base on exactly how the Plaintiffs made it through. However, since all the Plaintiffs' names stayed on the case throughout, I will assume that they all had standing. Otherwise, some of them would have been dismissed.

I applaud all of them for stepping up to the plate and fighting this fight, and I applaud the attorneys that fought the fight too. From the pleadings that I read from the attorneys for the Plaintiffs/Appelants, they seem to be really good. I wish I had been working on that case. Then again, I should probably watch what I wish for because I would be tossing and turning on that case because there is so much riding on it for me personally. It would have been a tough one for me.

I will leave with all good LEO's deserve a pat on the back, and a raise. However, I dealt with a LEO two weeks ago in a protectice order because he had threatened his ex-wife over the telephone. He was being investigated by IA and on a separate criminal charge at the time, and partially blamed his wife for it. His children had been receiving counseling for the abuse that he put them through, there was a consent order that he would have no contact with his children, the counselor recommended that the ex-wife obtain a protective order, the police department recommended that the ex-wife obtain a protectice order, the abuse had been going on for several years prior to all this but the police didn't do anything when my client reported it, the guy held a gun to my client's head and one of his children on two separate occassions, and it finally took his threatening a fellow police officer before anything came of it. Oh yeah, during this time he received an Officer of the Year award. This seems like a problem with the police force if I ever heard of one. Then, a couple of months ago, a Maryland State Trooper was arrested on statutory rape charges, and he admitted to being guilty, which is somewhat admirable, but still disturbing. Again, it is the few bad apples that screw it up for all of us, but the good guys don't get any praise just for doing their jobs well.

[BILLY D.]

Fabs

Your last post kind of ties up with the concealed carry post I made earlier.

The reason the info on the Roanoke Times posting the name of CCW permits disappeared from their website is because a few of the permit holders were women with protective orders against their former mates. Obviously they are not the type to make a 911 call, and as far as I'm concerned, good for them. Personal responsibility rules in these matters.

Police departments don't worry about preventing crime, they are the sweep up crew.

Bill

[skeet]

Quote"Police departments don't worry about preventing crime, they are the sweep up crew."


Billy that is perfectly true. And quite often the high profile departments really don't solve a lot of crime. The state troopers are usually out there writing tickets raising capital. It's the smaller departments that solve the most crime. Probably departments like TBO's...although I don't know how large his department is.

[Aim to maim]

Originally posted by fabsroman
They might not request a hearing en banc if they don't want this to go to the Supreme Court. Now, I need something much stronger than Pepcid.

Mr. Roman,

Thanks for not pointing out my glaringly incorrect spelling of "en banc" in response to my post. I knew there was a good reason laymen are not permitted to practice law.

[fabsroman]

Aim to Maim,

I don't get to bent out of shape over grammar and spelling on chat boards unless somebody makes a mistake while insulting me. Then, the gloves are off.

As far as I am concerned, I wish the law were a lot easier for everybody to understand. I spend most of my time educating my clients about the law and the tax code. It really shouldn't be this way, but I guess society has just gotten too complicated for it to be any simpler.

LEO's can precent crime sometimes when they respond to a call in time, but if it is a life or death situation I think I am going to rely on myself first and law enforcement second. LEO's do plenty of good things. As an example, they respond to car accidents and save lives that way. It is just hard for them to be in the right place at the right time because they cannot predict where the criminal is going to strike next. For instance, if a criminal intends to break into my house, law enforcement would have absolutely no clue about it. They have a tough job, and that is why it is our job to help them out. I applaud Ms. Parker in the law suit who is trying to clean up her neighborhood where they are selling crack on the corner. A LEO friend of mine works in PG County by the Redskins stadium and he said that anybody standing on a street corner is selling crack down there. He has arrested plenty of them. My issue is how they keep getting out of jail. Once, he arrested a guy in a downpour. The guy was standing on the corner selling crack with an umbrella and he didn't even run because he didn't want to get wet. There is something seriously wrong with our justice system when somebody would prefer to be locked up for dealing drugs over getting wet in the rain. There is something truly wrong with it indeed.

[TheeBadOne]

How about:

-when The Police target known bad guys, tail, surveil, nail and jail them, sending them to prison when the points/probation add up.

-when The Police perform probationary enforcement, sending a multi-convicted felon back to prison for violating probation (curfew/alcohol/hanging w/dirtbags) thus preventing more crimes.

-when the Police do sex offender verification, and send them to prison for not keeping a current address, or not listing an alternative address, thus preventing them from committing further crimes.

-when the Police aggressively target areas of high crime, which is noticed by the criminals doing the crimes, who then move elsewhere.

-when the Police enforce zoning for bars/hotels, thus preventing "attractive nuisances" reducing crime.

-when The Police provide fraud prevention education for businesses

Those are just some of the things that go on daily in a Police Dept that the average Joe is unaware of.

[fabsroman]

Well, I wish you guys would catch some of my clients that are on probation. It kills me to know they are on probation, they do not have a driver's license, and they continue to drive like it is no big deal. It is like they are thumbing their nose at the system.

I have had a client on probation, and while on probation he got in a ton of other trouble, and for the most part the Judges let him off of everything. I finally stopped representing him.

[TheeBadOne]

Originally posted by fabsroman
I have had a client on probation, and while on probation he got in a ton of other trouble, and for the most part the Judges let him off of everything. I finally stopped representing him.

If he got in a ton of other trouble, and the judges kept letting him off, that means the Cops were doing their part and catching him, right?

Originally posted by fabsroman
Well, I wish you guys would catch some of my clients that are on probation. It kills me to know they are on probation, they do not have a driver's license, and they continue to drive like it is no big deal. It is like they are thumbing their nose at the system.

You ever go fishing?

[fabsroman]

Agreed.

"You ever go fishing?"

LOL

A friend of mine got pulled over by a State Trooper and he asked the Trooper why the Trooper pulled him over because he was going the same speed as the other 10 cars around him. The Trooper asked him he had ever been fishing. My buddy replied with yes. The Trooper than asked him how many fish he usually caught when he threw a hook into a school of fish. Not the same thing you are trying to say, but I get the point. It also applies to hunting. Some days you get something, some days you don't.