Original(ist) considerations about federal power and the Bill of Rights.
Could gun rights advocates really be wrong about the unconstitutionality of the District of Columbia's handgun ban? Interestingly, one conservative professor thinks so. Amidst the buzz over the U.S. Supreme Court's pending decision in District of Columbia v. Heller, Dr. Kevin R.C. Gutzman insists an original understanding of the Constitution supports the ban. But there is good reason to think Gutzman is wrong about the Constitution and the right to keep and bear arms. The Congressional power to exclusively legislate for the District should be directly limited by the Bill of Rights.
At Anderson Cooper's 360 Blog, Gutzman writes that he refused to sign an amicus curiae brief in the Heller case that opposed the handgun ban. The Bill of Rights, says Gutzman, “was not about empowering federal judges to strike down state laws . . . but about limiting federal power.” He also dismisses claims that the District is Columbia is part of the federal government. Instead, Gutzman writes that the District “is properly treated like a pseudo-state by the Supreme Court,” and that “Congress long ago delegated home rule functions to D.C.” Gutzman goes so far as to claim that, “When it comes to the Second Amendment, then, D.C. is a state, and the Second Amendment does not restrict its policy-making discretion.”
Hold it right there. The Bill of Rights limits federal power, including federal power over federal territories. The District of Columbia is a federal enclave. It was created out of a cessation from the State of Maryland. (The State of Virginia's cessation of land was later retroceded.) The District's constitutional origin is in Article I, Section 8, clause 1. Known either as the Article I Property Clause or the Enclave clause, it says that Congress shall have the power:
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, 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.
Congress has delegated legislative authority over the District to the local DC government. But Congress cannot delegate away the constitutional design through statute. Its power of exclusive legislation remains by virtue of the Enclave Clause. Congress can continue to legislate for the District, just as it famously did in 1862 by abolishing slavery there. Moreover, Congress cannot delegate greater powers than those it inherently possesses. Congress and the DC government have a principal-agent relationship. The same limits on the Enclave Clause's grant of exclusive legislative authority to Congress follow with any Congressional delegation of that authority. Whatever “pseudo-state” status or “home rule powers” might mean, none of that makes the District a state on equal footing with the fifty we count in the Stars and Stripes.
Oddly enough, it is only Gutzman’s claim that the District is a “pseudo-state” that brings the incorporation of the provisions of the Bill of Rights against the states squarely into the picture. He cites Barron v. Baltimore (1833) for the proposition that the Bill of Rights is only a limit on federal power. Chief Justice John Marshall's opinion in Barron can hardly be disputed. Barron, however, came before the ratification of the Fourteenth Amendment. The Due Process, Equal Protection, and Privileges or Immunities clauses of that Amendment apply directly to the states. (Each of those clauses can also be further enforced through Congressional legislation.) The picture presented by Barron is certainly complicated by the Fourteenth Amendment. But contra “pseudo-state” assertions, the teasing out of those constitutional implications can wait for another day.
The scope of the Second Amendment's protections against state power should likely be irrelevant in Heller. To decide the case, the Supreme Court does not have to reach the issue of whether the Second Amendment protects citizens from state bans on handgun ownership. The Justices will almost certainly have to grapple with the relationship between the right to keep and bear arms and state militias. As the Second Amendment says, “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.” But because no state law is under review in Heller, the Justices can limit their Second Amendment holding to the issue of federal power and the right to keep and bear arms.
Whatever happens in Heller, don't expect the Supreme Court to shock us by taking to heart Gutzman's pseudo-constitutional claim that the District is a “pseudo-state.” Congress’s exclusive powers of legislation over federal enclaves are limited by the Bill of Rights. If the District of Columbia — the Federal City — isn't a federal territory, then what is?
Read more articles by Seth Cooper
Whether DC is a federal enclave or not is less important than the overriding fact that citizens live and work in DC, and it is their individual rights at stake.
The Constitution does not create rights, it only charges government to secure them (make them safe). A state has sovereignty to govern itself (however eroded that status might be), but neither it nor the feds have the power to diminish or rescind rights.
Comment by Mountain Man | April 1, 2008
The 14th amendment incorporated federal rights into state jurisdiction. That is why there is a national right to freedom of religion which in the original intent only applied to Congress. While before the 14th amendment one could argue the right to keep and bear arms only applies to areas of direct federal jurisdiction, after the Civil War federalization of rights this is impossible.
Comment by jmklein | April 1, 2008
So, does that mean that Roe v Wade does not apply in DC? It sounds like a Ron Paul position to me.
Comment by Ivan Ivanovich | April 1, 2008
jmklein,
Let's be clear in our understanding. Nothing in the Bill of Rights can be construed as having anything to do with ennumerating the rights of citizens. For example, the First Amendment begins, "Congress shall make no law…" The subject is Congress, and the purpose of the amendment is to tell Congress what it cannot do.
The Constitution and Bill of Rights are written to define the scope and limits of the delegated authority of government. "The people," in contradistinction to "the government," are only mentioned incidentally in order to define the restraint of government.
That is why it is inaccurate to use terminology like a "national right to freedom of religion." This right, and all other rights pre-date the Constitution, having been endowed by the Creator.
Comment by Mountain Man | April 1, 2008
However, following the logic of the "scholar" would allow a violation of the "cruel & unusual"…(pls forgive the shorthand ref. PDA is cranky today - grin)
- martin.musculus
Comment by martin.musculus | April 2, 2008
I am only up to page 55, but already this article highlights a number of issues at least as important as the 'right to bear' question. For example, there is the question of an unelected, non-legislative body (U.N. Human Rights Commission) promulgating what are or will become laws; to be imposed on sovereign nations. There is nothing in the U.N. charter that gives it a power to legislate or its judiciary to judge or alter our laws subject to ‘international’ law. It specifically states "Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII." (i.e., only the Security Council can institute Chapter VII enforcement measures.) Chapter VII gives the U.N. power to intervene in hostilities between countries only.
Then, there is the matter of the UN-HRC acting contrary to its own charter by taking sides against Israel and shielding some of the worst abusers of human-rights on the planet. Not surprising when you realize the commission is composed of appointees from Libya, Cuba, Sudan, Saudi Arabia, Russia, North Korea, Zimbabwe, Tunisia, China, and Pakistan. There have been few HR commissioners from democratic countries since the early 1990s.
All of this is but the tip of the iceberg, however. Read http://www.unhchr.ch/Huridocda/Huridoca.nsf/e06a5300f90fa0238025668700518ca4/6395d27097af5ed0c1256e1600569325/FILE/G0316227.pdf for an idea just how far our ‘internationalists’ friends intend intruding on our sovereignty. The U.N. has set itself up as ultimate arbiter of what constitutes ‘human rights’ violations; and reads like a socialist wish-list. It does not limit its ‘mandate’ to wishing or recommending. It fully intends this as binding on every nation, regardless of charter status, legality, acceptance, consequence, or merit.
Just as an example of the implications should our government concede this, consider section 46 – Human Rights of Migrants. What is described therein is nothing less than full amnesty for illegals now and in perpetuity mandated by an extra-national commission. It makes it a crime, in this country, to even suggest closing our borders to invasion, mandates unchecked services to illegals (medical, education, housing, training, &c), makes it illegal to use immigration status as a criteria for employment, makes tolerance a duty, subjects the prosecuting of foreign nationals for crimes committed and apprehended here to the laws of their nation of origin, makes it our responsibility that illegals (while sneaking in) are given safe, unhindered passage, guarantees border guards will be prosecuted for doing their job, makes it illegal arresting illegals for the crime of being here illegally, makes it our responsibility to protect them from the consequences of their own illegal actions (e.g., rescue them from coyotes, debt-bondage, &c), limits the legislation we can pass to control our borders, uses children as a vehicle for shielding illegal alien adults, protects the flow of plunder out of the country, eradicates borders between adjacent countries, and it proclaims December 18 as ‘International Migrants Day’. It recommends burying all this within a framework of immigration control, the better to get ratification from individual states; and was passed without so much as a vote by the U.N. General Assembly.
Comment by Bob Stapler | April 2, 2008
My link (above) does not work from here, so instead goto http://www.unhchr.ch/html/menu2/2/sessions.htm , and click on the session report for 2003.
Comment by Bob Stapler | April 2, 2008
Dear Mr. Stapler
I think that if the UN attempted to restrict the gun rights of US citizens they would find thier butts in the East River in a New York minute. Let's just wait until June and see what Mr. Roberts and company have to say.
Comment by Ivan Ivanovich | April 2, 2008
I just find it strange that the Second Amendment is interpreted by liberals to be most restrictive to the individual, while the First Amendment right of free speech is interpreted in the broadest sense so that "Debbie" (as in “Does Dallas”) flouting her gyrating pudenda qualifies as a protected right of "expression".
One would think they would use the same liberal yardstick for all Amendments; but then again, there’s nothing consistent about liberals except their inconsistency.
Comment by sedonaman | April 2, 2008
I think they use the same yardstick. They don't like conservatives saying anything good about Bush, the fact that life begins at conception, Obama's racist pastor, the blue dress, and a whole list of other issues.
Comment by Ivan Ivanovich | April 2, 2008