Things you see at 4:00 am

Like many of my friends I work nights and thus I have the misfortune of being awake for a lot more hours than most people and get time to think and write accodingly. These are just reflections on the curent state of everything I have an opinion about.

Tuesday, July 17, 2007

Intersting legal question

Yahoo news had a brief article about the Washington D.C. hand gun ban and the usual anti gun pro gun rights arguments were in abundance. But the fact that got me thinking was this paragraph.

"The city argued the Second Amendment's gun language applied only to the rights of states to maintain citizen militias and does not cover the ability of citizens to own handguns privately for other purposes."

If that is the case where does Washington D.C. fall They are not a state and the constitution does not include a provision for non State Districts that I could find. If I am wrong on this please point it out. So since D.C. is not a state two arguments could be made the first being that they have no state sponsored militia, or a Governor to create one, so no one could own guns.
Or that since there is no state government the second amendment is null and void in D.C. and that just opens a whole quagmire of legal nightmares about the 2nd amendment specifically and the application of constitutional law specifically.


Blogger vinnie said...

The founders considered all territories part of the "State"

Besides living in D.C. does not make you immune from the draft.

3:27 PM  
Anonymous Anonymous said...

Part 1.

Congress has sole legislative authority over the district.

Article 1, section 8.

Congress shall have power to... "To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States..."

Congress, being a part of the government set up by the constitution, is bound by the Constitution.

The preamble to the first ten amendments sets forth the purpose of those amendments.

It states in part:

"THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution."

Congress, who exercises exclusive Legislation in all Cases whatsoever in the district, is bound by the further declaratory and restrictive clause that is Amendment 2 of the Constitution.

Part 2.

The Second Amendment references "the security of a free State"--a general term.

It does not reference the security of "the free State"--a specific term, singular.

It also does not reference the security of "the free States"--a specific term, plural.

The article used "a" verses "the" and lack of plurality makes a very large difference in meaning.


The only way to misconstrue the meaning of Amendment 2 to not apply to the district is to take the words out of context.


This very issue was raised in the dissent in Parker V D.C. and addressed by the majority decision.

Parker v D.C

4:02 PM  
Anonymous Josh said...

The dissent in the Parker v. DC decision cited the fact that Washington, DC is not a state as it's primary reason for dissent. The two judges who supported the decision cited pages of case law and historical documents in their decision. Personally (and not just because I really, really hope it goes that way) I'm going to side with the people who realize that, while DC isn't a state, the people living there are no less US citizens with Constitutional protections.

4:49 PM  
Blogger Heartless Libertarian said...

Actually, one of the reasons that DC was chosen for a challenge is that it isn't a state, and thus you don't have to deal with the issue of incorporation under the 14th Amendment.

If SCOTUS affirms Parker, expect to see something challenging Chicago's (or one of it's suburbs) handgun bans, on the grounds that the 2nd should apply to the states via the 14th. In addition to a challenge in the DC courts of the federal 1986 ban on new MGs.

7:47 PM  
Anonymous Anonymous said...

Parker was filed against DC specifically because it isn't a state. If it were, there would be the question of whether the Second Amendment had been incorporated and therefore applied to it as a state.

The common original understanding of the 14th Amendment was that it made all of the limits on the Federal government apply to the states. It took just a decade or two to have the courts start to state that the 14th Amendment was still only a restriction on the Federal government and that not all of the Bill of Rights applies to the states.

The courts have ruled that some restrictions in the Bill of Rights do apply to the states. Those provisions have been "incorporated".

By filing in DC, the plaintiffs avoided that issue altogether.

10:15 PM  
Anonymous Anonymous said...

And then there was Dred Scott

But the power of Congress over the person or property of a citizen can never be a mere discretionary power under our Constitution and form of Government. The powers of the Government and the rights and privileges of the citizen are regulated and plainly defined by the Constitution itself. And when the Territory becomes a part of the United States, the Federal Government enters into possession in the character impressed upon it by those who created it. It enters upon it with its powers over the citizen strictly defined, and limited by the Constitution, from which it derives its own existence, and by virtue of which alone it continues to exist and act as a Government and sovereignty. It has no power of any kind beyond it; and it cannot, when it enters a Territory of the United States, put off its character, and assume discretionary or despotic powers which the Constitution has denied to it. It cannot create for itself a new character separated from the citizens of the United States, and the duties it owes them under the provisions of the Constitution. The Territory being a part of the United States, the Government and the citizen both enter it under the authority of the Constitution, with their respective rights defined and marked out; and the Federal Government can exercise no power over his person or property, beyond what that instrument confers, nor lawfully deny any right which it has reserved.

A reference to a few of the provisions of the Constitution will illustrate this proposition.

For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances.

Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding.

12:58 AM  
Anonymous Anonymous said...

In a forthcoming law review article (available at, professor Eugene Volokh dissects Henderson’s dissent. As he shows by copious citations, “A free state” was a well-established phrase meaning “a non-despotic country.”

7:01 PM  

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