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District Court on the Second Amendment:

Industrious v. Cauley (E.D. Ky. Oct. 1), rejects yet another Second Amendment challenge to felon-in-possession laws -- a result that is correct under D.C. v. Heller, and also seems justified in this particular case on various procedural grounds that the court mentions. But at the end, the court says -- citing the D.C. Circuit decision that Heller affirmed, Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007), and that petitioner relied on more than he did on Heller --

Finally, the Court notes that the Parker decision concerned gun restriction laws and the unique legal status of the District of Columbia, as opposed to the status of “States.” See Parker, 478 F.3d at 406 (“The Second Amendment’s “character and aim” does not require that we treat the District as a State. The Amendment was drafted in response to the perceived threat to the “free[dom]” of the “State[s]” posed by a national standing army controlled by the federal government .... Accordingly, both the Supreme Court and this court have consistently held that several constitutional provisions explicitly referring to citizens of “States” do not apply to citizens of the District.”). Parker does not assist Industrious in this § 2241 proceeding.

But the quote from Parker is from the dissent, not from the majority opinion. The majority expressly held that the Second Amendment did apply to citizens of the District. And more broadly, the majority's reasoning recognizing an individual right to possess guns was not limited to D.C. residents, or tied to "the unique legal status of the District of Columbia" -- it applied equally to federal laws affecting U.S. citizens throughout the country, as does the Heller decision, which affirmed the D.C. Circuit majority opinion. (Note that the Industrious case involved a conviction for violating a federal law.)

As I said, this doesn't affect the bottom line, given Heller's assertion that bans on felon possession of guns are constitutional, and given the apparent procedural barriers to Industrious's claim (I assume the district court is right about those). But it does show a pretty serious error in the district court's interpretation and citation of the Parker decision, and in the district court's understanding of current Second Amendment law.

I should note, before people start casting political aspersions, that Judge Wilhoit, who wrote the opinion, was appointed by President Reagan in 1981.

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