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Friday, March 09, 2007

Second Amendment News

In what could be a landmark case, the Federal Court of Appeals for the District of Columbia threw out DC's longstanding handgun ban, overturning a District Court ruling from last year. The District has long maintained that the Second Amendment applies only to organized militias, a line of reasoning rejected both by the Court of Appeals and by the tradition of American constitutionalism. The decision is overdue and highly welcome.

What boggles my mind, however, is this comment from the dissent (itself taken from an earlier case, Seegers v. Ashcroft): "the District of Columbia is not a state within the meaning of the Second Amendment and therefore the Second Amendment’s reach does not extend to it."

This statement ignores several key facts. Most importantly, it assumes that the Court has incorporated the Second Amendment through the application of the 14th Amendment, so as to apply its provisions to the states. The Court has never done this, but has rather held on several occasions that the Second Amendment's protection of the right to bear arms is NOT covered by the 14th Amendment's guarantee of equal protection. (Of course, one could argue, as an even more fundamental point, that the entire incorporation doctrine itself is bunk -- but that's another discussion). So, saying that the Second Amendment doesn't apply to the District of Columbia because it's not a state is pointless -- the Second Amendment wouldn't apply to the District even if it were a state.

In fact, the status of the District of Columbia as Federal territory, and its NOT being a state, is what causes the Second Amendment to apply there. The Bill of Rights, along with the rest of the Constitution, binds first and foremost the Federal government. Congress lacks the authority to prohibit the bearing of arms. Yet the District of Columbia's administration, which Congress created and vested with powers, believes that it can. From where has it received such power? Congressus non supplet quod Congressus non habet (to adapt a phrase).

The case is Parker, et al v. District of Columbia.



Blogger stuart said...

Actually, you are 1/2 right. The Second Amendment does NOT apply to State laws governing guns, at least according to the Supreme Court's analysis. In plain English (and for the non-lawyers out there), every single one of the Bill of Rights applies to laws passed by the Federal Government. Some of the Bill of Rights (i.e the First Amendment) apply to laws passed by the states, but others (i.e the Second Amendment) do not. What this means is the Feds cannot pass laws that violate the Second Amendment, but the state and local governments can, at least according to the Supreme Court's incorporation doctrine (which I agree is absurd, but unless its overruled, it is what it is.) On the other hand, because the Supreme Court has held that the First Amendment applies to the states, neither the state, nor the Feds can pass laws violating the First Amendment.

Now, DC is not a state, and is governed by the Federal Constitution, which is why there is even a remote possibility (or according to the 2-1 majority in the DC Circuit, the reality) that the Second Amendment applies to it. However, this case doesn't change the fact (or even suggest, nor could it) that state laws cannot violate the Second Amendment.

The Majority holds that DC law cannot violate the Second Amendment. To me, this should have been a no-brainer. DC has always been subject to the Federal Constitution, and this should be no exception.

The dissent attempts to argue that because DC is not a "state," the Second amendment doesnt prevent either the Feds or DC local law from violating it. In other words, according to the dissent, even if this was a law passed by the federal government, it would survive constitutional attack in DC, because the Second Amendment doesn't cover laws (state or Federal) that apply in DC.

As a result of this case (which has very limited significance outside DC), the state of the law (whether you agree with it or not) is as follows: Federal Government can not pass any law violating the Second Amendment, but the state and local governements can, unless you live in DC, in which case the DC local government is bound by the Second Amendment.

PS I am clearly in the minority, in that this is an issue I care so little about; it interests me only as a matter of constitutional law.

5:19 PM  

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