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.