The DC Gun Challenge

27 Sep 2007 at 07:27:12 · Filed under Firearms, Judiciary
Posted by Cap'n Bob

gun.gifHere’s some interesting stuff about the current litigation of the Washington D.C. Gun Case: Washington D.C.’s challenge to the recent Federal Court ruling that their gun ban is unconstitutional asserts that its gun ban is constitutional because:

  1. It only applies to handguns
  2. The Second Amendment only restrains the federal government, not states or local governments like D.C.
  3. D.C.’s gun ban is reasonable because it has saved “thousands of lives.”

According to the DCGunCase blog, Bob Levy in Legal Times (PDF) makes the following observations about D.C.’s three claims:

  1. Not only does the ban apply to handguns, but restrains rife and shotgun owners to disassemble or lock their unloaded firearms, thus rendering them virtually useless for self-defense. D.C.’s Mayor Fenty weakly makes the claim that these guns are suitable for home defense. One judge in the case observed that the city could have enacted a complete gun ban claiming that sabers were still legal.
  2. D.C.’s claim that they are a “local” government and should be exempt from the second amendment fails because the Constitution expressly grants to Congress, not a state, plenary legislative power over all matters whatsoever in the nation’s capital. Because the Second Amendment indisputably applies to the federal government, it therefore applies to the District, a federal enclave.
  3. Has the D.C. gun ban saved “thousands of lives?” Before the District banned handguns in 1976, its murder rate had been declining. But soon afterward, the rate climbed to the highest of all large U.S. cities. It also rose relative to nearby Maryland and Virginia, as well as relative to other cities with more than 500,000 people. During the 31-year life of the ban, with the exception of a few years during which the city’s murder rate ranked second or third, there have been more killings per capita in Washington, D.C., than in any other major city. The rate climbed as high as 81 murders per 100,000 inhabitants in 1991 - triple the pre-ban levels. As of 2005, the last year for which I have data, the murder rate was still 32 percent above the 1976 level.

We’re going to keep tuned in to the DCGunCase blog since any landmark decision by SCOTUS will affect gun ordinances everywhere.

2 Comments

  1. Leif Rakur said,

    September 27, 2007 @ 10:36:06

    Referring to Point 2, above:

    At least twice the U.S. Supreme Court has said that the Second Amendment is a limitation only upon the power of Congress and the National Government (United States v. Cruikshank, 1876, and Presser v. Illinois, 1886). Does Washington, D.C., by virtue of being a “federal enclave,” become Congress or the National Government and exercise the power thereof? It doesn’t seems so to me.

    If Congress has “plenary legislative power over all matters whatever in the nation’s capital,” it would seem to me that it is Congress, not Washington D.C., that is responsible for any unconstitutional laws that may have been passed in the nation’s capital.

  2. Cap'n Bob said,

    September 27, 2007 @ 11:11:22

    Levy’s argument included two points regarding the District’s claim to be exempt from the Second Amendment:

    “The District is like a state, and the Second Amendment doesn’t apply to states.”

    The District relies on an 1886 Supreme Court case, Presser v. Illinois, for the proposition that the Second Amendment applies only to the federal government, not to the states. Of course, the District is not a state. But, says the mayor, the city should be treated the same as a state when courts review its gun-control regulations. Therefore, so the argument goes, the city is immune from a Second Amendment challenge.

    That argument fails on two counts. First, none of the amendments in the Bill of Rights originally applied to the states. Beginning in 1897, however, 11 years after Presser, the
    Supreme Court decided that the post-Civil War enactment of the 14th Amendment was intended to “incorporate” most of the Bill of Rights to hold state governments accountable for violations. To be sure, the Court never formally ruled that the Second
    Amendment was incorporated, but even ultra-liberal 9th Circuit Judge Stephen Reinhardt has conceded that “Presser rest[s] on a principle that is now thoroughly discredited.”

    Second, even if states are exempt from the Second Amendment, the Constitution expressly grants to Congress, not a state, plenary legislative power over all matters
    whatsoever in the nation’s capital. Because the Second Amendment indisputably applies to the federal government, it therefore applies to the District, a federal enclave.

    The District’s assertion that its city council, a creature of Congress, should enjoy an exemption from the Second Amendment that binds Congress itself, is bizarre. If it were
    true, then the Seventh Amendment right to a jury trial in civil cases—which also hasn’t been incorporated—would not apply to the District. But the courts have held otherwise, including the Supreme Court in Pernell v. Southall Realty (1974).

    The city responds that the Second Amendment is different because, unlike the Seventh, the Second is a limitation on federal power over the states.

    In effect, that’s the collectivist or states’ rights view of the Second Amendment. Thus, the District’s claim of exemption merges with, and depends on, its collectivist interpretation of the Second Amendment. If the District is wrong about the Second Amendment, then its “no-incorporation” argument collapses as well.

RSS feed for comments on this post