Saturday, May 26, 2007
Likely questions presented in DC 2nd Amendment case cert petition.
"(1) whether the [Circuit Court] panel decision conflicts with the Supreme Court's decision in United States v. Miller (1939)...; (2) whether the Second Amendment protects firearms possession or use that is not associated with service in a State militia; (3) whether the Amendment applies differently to the District because of its constitutional status,...and (4) whether the challenged laws represent reasonable regulation of whatever right the Amendment protects.
No cert petition has yet been filed; this text is foreshadowing from a motion for a stay.
Grants of certs are rare, but are likely here. There was a split in the panel, there was a split in the en banc decision not to review, there is a split in the circuits,and here a government regulation was struck down on constitutional grounds, and the question is an important one for public policy. So cert is likely if never certain.
These are good questions and frame the issues well. The DC circuit's decision does not conflict with Miller. The right to bear arms is right of federal citizenship and is not limited to those living within states; the use of the term "state" in the second amendment is in the sense of government or country. Nothing in the text of the constitution makes DC a rights-free zone, although voting procedures are different. DC's total ban on handgun ownership infringes on the right to keep arms so is not a reasonable regulation. The DC government has done the people a great service in going forward with a case it may well lose. This does not mean we know how the court will rule.
"(1) whether the [Circuit Court] panel decision conflicts with the Supreme Court's decision in United States v. Miller (1939)...; (2) whether the Second Amendment protects firearms possession or use that is not associated with service in a State militia; (3) whether the Amendment applies differently to the District because of its constitutional status,...and (4) whether the challenged laws represent reasonable regulation of whatever right the Amendment protects.
No cert petition has yet been filed; this text is foreshadowing from a motion for a stay.
Grants of certs are rare, but are likely here. There was a split in the panel, there was a split in the en banc decision not to review, there is a split in the circuits,and here a government regulation was struck down on constitutional grounds, and the question is an important one for public policy. So cert is likely if never certain.
These are good questions and frame the issues well. The DC circuit's decision does not conflict with Miller. The right to bear arms is right of federal citizenship and is not limited to those living within states; the use of the term "state" in the second amendment is in the sense of government or country. Nothing in the text of the constitution makes DC a rights-free zone, although voting procedures are different. DC's total ban on handgun ownership infringes on the right to keep arms so is not a reasonable regulation. The DC government has done the people a great service in going forward with a case it may well lose. This does not mean we know how the court will rule.
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