“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.

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.