Along with a group of other residents of the District of Columbia, I’m a plaintiff in a suit against the District for its unconstitutional ban on firearms. In a complicated set of proceedings, lawyers involved with the NRA put together a competing suit (Seegars) and tried to have theirs consolidated with ours; they failed at the attempt at consolidation. Just yesterday the United States Court of Appeals for the District of Columbia Circuit held that none of the plaintiffs in Seegars has standing to challenge the gun laws of the District. The case in which I have been involved has been stayed pending resolution of the other suit; our lawyers are now examining that case to determine what implications it may have for ours. Here is the decision of the D.C. Circuit Court in the Seegars case: Download file.
Hey Dr. Palmer-
Disregarding the constitutionality and other issues of gun control, doesn’t DC have the right to make its own laws?
Adam’s question raises at least two issues. First is the question of whether the Second Amendment prohibits states from banning guns outright. Second is the special status of the District of Columbia, which is not a state, but a federal district. Since the District is a federal district, there is no question at all as to whether the Second Amendment applies. (You don’t have to invoke the incorporation doctrine occasioned by the Fourteenth Amendment.) And the Second Amendment is incompatible with the draconian ban on all guns that the District of Columbia government has enacted. (The legal brief here http://www.cato.org/pubs/legalbriefs/gunsuit.pdf sets out the arguments; I thought that I had linked to it in the main post, but I had forgotten. It’s now in the main post, as well.)
I don’t usually fall on your side in the LRC vs. Cato spats, but in this I must congratulate you for taking the time and the energy to fight for some basic rights for DCers. Bravo.
The Bill of Rights does not apply to D.C.
Article I Section 8
Section 8. The Congress shall have power …..
To exercise ** exclusive legislation in all cases whatsoever**, over such District
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“An Act to Provide a Government for the District of Columbia” passed by Congress on February 21, 1871. (When DC was “admitted to the United States”)
Session 3, Chapter 62, Section 34:
and the Constitution and all the laws of the United States, **which are not locally inapplicable**, shall have the same force and effect within the said District of Columbia as elsewhere within the United States.
Also in section 34 there is a provision for D.C. to elect a Delegate to the House of Representatives, interestingly the language puts him on the same footing as a delegate “from the several Territories”.
Also noteworthy is Section 18:
and nothing herein shall be construed to deprive Congress of the of the power of legislation over said District **as if this law had not been enacted.***
I find Mr. Tucker’s points to be less than persuasive. It would make sense if the Bill of Rights were not a restriction on Congress, which (as per Article I, Section 9) has exclusive legislative responsibility over the federal district:
“Clause 17: To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, byCession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;”
However, the Bill of Rights most clearly does limit the powers of Congress. The First Amendment begins with the famous words,
“Congress shall make no law …”
That seems quite clearly to limit the powers of Congress. Is it plausible that that does not restrict the powers of Congress over the federal district? The Congress could not establish or purchase a district and then violate the restrictions on its powers over that district.
Moreover, the 1871 act clearly implies that those portions of the Constitution that govern the states will not apply to the federal district, for the simple reason that it is not a state. It does not follow from that that the Congress may exercise completely unlimited power over that district.
The Second Amendment guarantees “the right of the people,” which “shall not be infringed.” It does not go on to specify, “except those of the people who reside within the federal district, who have no rights whatsoever.”
Second Amendment to the U.S. Constitution:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
The thing that I’ve always wondered about the Second Amendment (gun control being one of the last issues on which I became a libertarian on) is the “A well regulated Militia” part.
I would say that the Bill of Rights applies more to DC than to the states. (In reality, the Bill of Rights is a limitation on federal power. An argument that it thus cannot be used to overturn state laws doesn’t apply, since the laws in question are all passed by the fedgov.)
I find Mr. Tucker’s points to be less than persuasive. It would make sense if the Bill of Rights were not a restriction on Congress, which (as per Article I, Section 9) has exclusive legislative responsibility over the federal district:
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The Bill of Rights is for the united States. D.C. is not a State anymore than Guantanamo Bay is a State or the Lousiana Purchase (check the treaty language, no BOR) was a State.
Do you not find the 1871 law’s language a bit strained? Why do you think that is?
If you read the Constitution carefully you will find all sorts of planted ambiguities that can and will be used in the interest of the State. For example, the 3rd Amendment allows for the quartering of troops in homes during times of war (right now) in a manner prescribed by law. Warrantless searches are a-ok so long as they are not “unreasonable”. I.E. no warrant is required to search most your vehicle during a minor traffic infraction stop.
Finally we have the phrase “exclusive legislation”. Was does exclusive mean? Whatever the government wants it to mean. The Courts, as branch of government, will act in the Government’s, not the People’s interest. Checks and balances are a myth.
Anyway, I hope you win this case and I’m pleased CATO has taken a 2nd Amendment issue head on but I’m pretty skeptical of success. (If proven wrong, I buy you a beer)
The thing that I’ve always wondered about the Second Amendment (gun control being one of the last issues on which I became a libertarian on) is the “A well regulated Militia” part.
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I can fix that for you. At the time “well regulated” meant in modern parlance, “ready to rock” not encumbered by regulations.
Or try this on for size : “A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed.’
Does this mean people who live in poorly schooled areas have no right to books ?
No.
the right of the people to keep and read Books, shall not be infringed.