Light a Seegar, it's the Best Birthday Present EVER!.

Mrs. Baker's little boy was born 45 years ago this day, and today the U.S. Court of Appeals for the District of Columbia gave me the best birthday present a gun-nut could ever want: A decision overturning D.C.'s draconian gun-ban on the grounds that the Second Amendment to the Constitution protects an individual right to arms.

If you've not been following the case, this has been in the pipeline for a while. The D.C. court was the ideal place to bring up such a suit because the District is not legally a "state." Its statutes are subject only to federal law. Because of the precedent of U.S. v. Cruikshank the Second Amendment has been excluded from "incorporation" under the 14th Amendment's "privileges or immunities" and/or "equal protection" clauses. State and local restrictions on the right to arms are legal (thus Chicago and Morton Grove, IL can ban handguns while Kennesaw, GA can mandate firearm ownership). While many courts have thrown out Second Amendment challenges on the "collective rights" arguments, all they've needed to do is cite Cruikshank - but Cruikshank, like Dred Scott before it, is a racist decision.

At any rate, Washington, D.C. doesn't get that protection. It's under federal law only, and the Second Amendment definitely applies.

Bear with me here. I've read enough legal decisions to make my eyes bleed over the last ten or twelve years. As a result, I assume other people have the same knowledge I've acquired, or conversely, don't know a damned thing about what I'm discussing. Either I give too much background information, or not enough. I prefer to err on the side of "too much."

In 1976 the City of Washington, D.C. passed three ordinances that had the following effects:

1: No new handguns could be added to the existing registry except for handguns belonging to retired police officers - essentially a ban on any new (legally possessed) handguns in the District.

2: No handgun could be carried without a permit - thus preventing even mere possession in ones own home.

3: All firearms - long guns included - had to be kept unloaded and either disassembled or with a trigger or other locking device installed, thus rendering any firearm kept legally from being available for self defense.

(And in the period since, D.C. has often been "murder capital of the U.S." for cities over 500,000 population - trading off fairly regularly with that other gun-control bastion, Chicago.)

Two very similar cases were brought before the D.C. District Court in 2003. Seegars v. Ashcroft was brought by the NRA on behalf of several plaintiffs arguing that the D.C. ban on registering new handguns was a violation of the Second Amendment. At about the same time the Cato Institute, a libertarian think-tank, filed Parker v D.C. on essentially the same grounds. In both cases all the plaintiffs were asking for was the right to keep a loaded firearm in their own homes. There was much wrangling, and the NRA attempted to get both cases tried simultaneously, but the Cato lawyers fought that battle successfully and kept them separate.

The National Rifle Association drew a lot of flak at the time (even from me) because they argued in front of the court that they were OK with registration. At any rate, Seegars lost in the District court and when it proceeded to the Appeals court that suit was dismissed on a very narrow reading of an earlier case where the panel concluded that the plaintiffs didn't have standing to sue because they hadn't actually been arrested and prosecuted for trying to register a firearm! To top it all off, during this period some granstanding Senators tried to render the whole point moot by overturning the D.C. gun ban by act of Congress. That failed too.

So, with Seegars a lost cause, many of us (me among them) figured Parker was headed for the scrap heap as well. The District Court found against Parker and the other plaintiffs because it (like most courts) believed the Second Amendment does not protect an individual right to arms. CATO then appealed to the D.C. Circuit Court of Appeals - and the appeal was granted. It seems one of the Parker plaintiffs actually tried to register a handgun - and was rejected. That was sufficient "damage" in the eyes of the Court. (I'll be quoting from the decision a lot in a later post.)

Today in a 2-1 decision (District cases are heard by a single judge, Appeals court cases are heard by a three-judge panel) the Appeals court found that the Second Amendment protects an individual right to arms, and that the rights of the plaintiffs had been unconstitutionally violated by the D.C. gun ban.

This was immediately denounced as "judicial activism at its worst" by the Brady Bunch. I'll have more to say on that topic later, too.

So where do we go from here? Well, most probably the District of Columbia will file for a Stay to prevent the decision from vacating the D.C. gun ban (don't rush out and buy a handgun yet, you denizens of D.C!) Then it will file an appeal for an en banc rehearing of the case. If granted, all (or at least most) of the judges on the D.C. Circuit will hear the case, and we'll get to see how many of them are honest and how many (in the words of 9th Circuit judge Alex Kozinski) are willing to constitutionalize their personal preferences, burying language that is incontrovertibly there. Regardless of the outcome of such an appeal, the case will then progress to the Supreme Court.

And there's the rub.

What happens then?

In 2001 the Fifth Circuit in U.S. v Emerson decided that the Second Amendment did indeed protect an individual right to arms, but that the right was not immune to "limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country." It decided that the defendant's individual right to arms had not been violated because he had received due process of law "albeit likely minimally so". In December of 2002 the Ninth Circuit Court of Appeals in Silveira v Lockyer decided that the plaintiffs had no standing to sue because there was no individual right to arms, based on their previous Hickman v Block decision. (Note to the Ninth Circuit: I live in Arizona, one of the states you preside over. And I know what the Second Amendment says, even if you do not.)

So we had two Circuit Courts of Appeals with recent cases having opposite holdings on whether the right to arms was individual or collective.

The Supreme Court passed on both appeals. Dr. Emerson remained in jail, Californians don't get any new "assault weapons" as defined by whoever is in charge of the California Dept. of Justice this week. And the question of whether or not the Second Amendment protects an individual right remains unanswered by our highest court.

Will they hear it? If they hear it, how will they decide? Will they finally "incorporate" the Second Amendment against infringement by the states?

In other words, will the Supreme Court overturn 72+ years of bad law at one stroke?

Think on that question and see if you can sleep soundly tonight.

I'll have more to say on today's decision later. I need to read it again and think a bit.