D.C. Gun Ban Update: Mayor Fenty petitions for en banc hearing

By Tim Inwood

"The District of Columbia and Mayor Adrian Fenty
respectfully petition this Court for rehearing en
banc"

With these words the Mayor of Washington D.C. launches
his challenge to the D.C. Circuit Court's ruling in
Parker vs. Washington D.C., made on March 9,2007.

For
those of us who have fought hard to restore our Second
Amendment rights, the Parker ruling was a stunning victory. Two of the three judges sitting on this court ruled
that the Second Amendment was indeed recognition of an
individual right to bear arms. Judge Silberman wrote:

“To summarize, we conclude that the Second Amendment
protects an individual right to keep and bear arms. That right existed prior to the formation of the new
government under the Constitution and was premised on
the private use of arms for activities such as hunting
and self-defense, the latter being understood as
resistance to either private lawlessness or the
depredations of a tyrannical government (or a threat
from abroad). In addition, the right to keep and bear
arms had the important and salutary civic purpose of
helping to preserve the citizen militia. The civic
purpose was also a political expedient for the
Federalists in the First Congress as it served, in
part, to placate their Anti-Federalist opponents. The
individual right facilitated militia service by
ensuring that citizens would not be barred from
keeping the arms they would need when called forth for
militia duty. Despite the importance of the Second
Amendment's civic purpose, however, the activities it
protects are not limited to militia service, nor is an
individual's enjoyment of the right contingent upon
his or her continued or intermittent enrollment in the
militia.”

This was breathtaking. However, all was not rosy, since
Circuit Judge Karen LeCraft Hendersen dissented. She
embraced the groundless collective rights argument. This argument was invented in the 20th century as an
excuse to infringe on rights, which were not to be
infringed upon. Thus, with her dissent in hand, and
knowing the leadership of Washington D.C. would not give
up their precious handgun ban, we knew this would not
be the end of the fight. Sure enough, the city issued a
fourteen-page petition to the D.C. Circuit Court asking
for an en banc hearing. What this means is they are
asking the entire D.C. Circuit to re-hear the case. Now
it is up to the court to decide what they shall do.

Click 'Read More' for the entire commentary.

I have read the petition, and I can tell you that
Judge Silberman and Judge Griffith will not be
impressed by it. The lawyers for the District of Columbia
clearly took their cues from the misguided Judge
Hendersen and her poorly informed dissent.

“Rehearing by the full Court is merited for three
reasons. First, en banc review is
necessary to ensure conformity with Supreme Court
precedent. As Judge Henderson explained
in dissent, the panel majority’s decision conflicts
with the decision in United States v. Miller, 307
U.S. 174 (1939). That decision held that the Second
Amendment’s right cannot be uncoupled
from its stated civic purpose: “With obvious purpose
to assure the continuation and render
possible the effectiveness of such [militia] forces
the declaration and guarantee of the Second
Amendment were made. It must be interpreted and
applied with that end in view.” Id. at 178.
The panel majority, however, held that “the activities
[the Second Amendment] protects are not
limited to militia service, nor is an individual’s
enjoyment of the right contingent upon his or her
continued or intermittent enrollment in the militia.”
Op. at 46; see op. at 41–45 (discussing Miller).
Judge Henderson is correct that this Court is obliged
to follow Miller’s declaration that “the right
of the people to keep and bear arms relates to those
Militia whose continued vitality is required
to safeguard the individual States.” Diss. op. at 3–6
(footnote omitted). En banc rehearing is thus
warranted to ensure fidelity to Miller. ”

In reality, Miller was a pretty shoddy case for
banning guns. I find it amusing that the gun
prohibitionists hang their hope on this rather poor
decision, which was more motivated on taxation than
anything else. The case was based on a ridiculous
premise that a short-barreled shotgun was not a part
of regular militia issue weaponry and thus could be
taxed under the National Firearms Act of 1934. This
stemmed from the arrest of a pair of moonshiners named
Jack Miller and Frank Layton in Arkansas. The federal
agents could not find Miller and Layton’s still or any
moonshine. Only large amounts of sugar and a Stephens
double barrel “sawed off” 12-gauge shotgun in Miller’s
vehicle. One agent, not wishing to let Miller or Layton go, decided to go after them for violating the 1934
National Firearms Act, since his shotgun had a barrel
under 18 inches.
You see Mr. Miller did not realize he needed a $200
tax stamp to have that gun that probably cost him $5. You have to remember, the Federal $200 tax was a lot of
money at that time. A Thompson submachine gun cost
$200; the NFA doubled the cost to $400 after you paid
your tax.

The case was heard in the District Court of the
Western District Arkansas in Fort Smith. However, all
did not go well for the Government. Judge Ragon did
not buy the legality of the NFA of 1934 and the
Government lost the case. Naturally, President Franklin
Roosevelt’s government could not have that, and it was
appealed to the U.S. Supreme Court. A Court that, I might add, had been packed with a number of Franklin
Roosevelt “New Deal” liberals. Miller and Layton did
not even show up, and nobody made the case that a
short-barreled shotgun was indeed used by the militia, making it all the easier for Gordon Dean, the
government attorney to make his case, which included
arguing that this particular Stephens shotgun serial
#76230 was not a militia issued firearm! A rather
ridiculous point since it was private property, but it
got by this court.

Apparently, these august men in
black robes never saw anything about soldiers carrying
Winchester 1897 trench guns in the Spanish- American
war or in the First World War. Or any of the other short
barreled riot and trench shotguns in the U.S. military
inventory, as they included this comment in the
decision.

“In the absence of any evidence tending to
show that possession or use of a 'shotgun having a
barrel of less than eighteen inches in length' at this
time has some reasonable relationship to the
preservation or efficiency of a well regulated
militia, we cannot say that the Second Amendment
guarantees the right to keep and bear such an
instrument. Certainly it is not within judicial notice
that this weapon is any part of the ordinary military
equipment or that its use could contribute to the
common defense.”

With no representation for the pair
of ne'er-do-wells, and eager to hang on to this method
of tax revenue, Justice McReynolds' court ruled with
the U.S. Government. The NFA and the taxation of NFA
firearms stood.

Now back to present day. The Fenty legal team complains that the March 9, 2007
ruling disregards other district court rulings, and
that an en banc hearing is necessary to answer the
fundamental questions:

(1) “Whether the Second Amendment protects firearms
possession or use that is not associated with service
in a State militia:”

(2) “Whether the Amendment applies differently because
of the District’s constitutional status;”

(3) “Whether the challenged laws represent reasonable
regulation of whatever right the Amendment protects.

These questions are literally life-or-death given the
realities of gun violence in our society. Reasonable
minds may differ as to how effective particular
firearms control measures may be, but if the panel
majority’s holding remains unchanged, it will severely
limit the authority of both the District government
and Congress to legislate in ways that they believe
will best protect citizens and law-enforcement
officers from gun violence and ultimately save lives.”

The closing rubbish about reasonable minds can
disagree how effective firearms control measure may
be, would make me laugh if it were not for the tragedy
of the thousands of people who have lost their lives
as a result of the prohibition to own a handgun in
Washington D.C. Mayor Fenty, who has armed bodyguards,
makes me ill as he carries on about gun violence.

Goodness, is he and his legal team so stupid that they
can not understand a handgun is an inanimate object
with no will of its own? Can they not grasp that only
the intent of the individual holding it decides if it
shall be used for good or evil? A gun does not shoot
people on its own! Certainly they understand that
enough to arm police officers in the District. To
continue to equate law-abiding citizens of the
District of Columbia with the criminals creating the
mayhem is disgusting to me and is insulting to them. I
truly puzzle as to why the people of Washington D.C.
continue to vote in such criminally incompetent
people.

Now we must wait to see what the court's answer will
be. As I write this, I have no idea if the
court will agree to hear the case or not. I have no
doubt that if the D.C. Circuit Court turns them down,
their next
move will be to take the case to the United States
Supreme Court. As this case continues to make progress
I will continue to do my best to keep you informed.

Tim Inwood is the current Legislative Liaison and Past President of the Clinton County Farmers and Sportsmen Association, an Endowment Member of the NRA, Life Member of OGCA, and a volunteer for Buckeye Firearms Association.

Click here to download the Mayor's petition to ask the full Appeals Court to hear the Parker case.

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