Posted by: bridget | 9 March 2007

Second Amendment Love

The Cato Institute brought a law that challenges DC’s nearly complete ban on handguns. In a 2-1 ruling, the D.C. Circuit ruled that the handgun ban (which prohibits ownership of handguns in the District, unless registered prior to 1976) is unconstitutional. The Second Amendment does not only give those in a militia the right to keep and bear arms, but is a right of the people. A plain reading of the text supports this: “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.” Right of the people indeed; it would take quite the jurisprudential kama sutra to get around that clause.

“The District argues that the modifier ‘well regulated’ means that “[t]he militia was not individuals acting on their
own; one cannot be a one-person militia.”  A militia would hardly be “well-regulated” if its members did not have arms.  Furthermore, the early colonies did not provide their Minutemen with weapons; young men in town would be ready to fight immediately.

The dissent missed the mark.  Judge Henderson declared that, “Unlike the States, the District had—and has—no need to protect itself from the federal government because it is a federal entity created as the seat of that government.” Judge Henderson seems to believe that the Framers believed that Congress and the Executive would extend benevolence to the residents of its domain while ruling in tyranny over the rest of the country. The suggestion is absurd; even more odd is the idea that the Second Amendment is a right of the States, when Marbury v. Madison concluded that the rights contained in the Constitution are the rights of the people.

Judge Henderson discussed the idea of the District as distinct from a state and that rights of its residents are different from those of the States. Yet, there is conflicting precedent that rights (such as the Fourteenth Amendment and all parts of the Bill of Rights that are binding on the federal government) are conferred upon Washingtonians. The distinction is simple: the District, as a governmental entity, lacks certain political rights (i.e. the right to representation in Congress); however, the residents of the District retain identical, individual rights to the residents of the States.

Volokh and Michelle Malkin weigh in, on reporting errors in the Washington Post and problems implementing the ruling, respectively.

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Responses

  1. […] pesky 2nd Amendment March 10th, 2007 — Neil Nice summary by the Pachyderm about the un-Constitutional nature of the Washington, D.C. gun ban.  […]

  2. Thanks, Neil! :)


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