D.C. Gun Ban Ruling: Win/Lose

As expected, today the Supreme Court struck down the District of Criminals' draconian gun control law.

Many gun/freedom advocates, such as myself, are both excited and relieved by the court's ruling, but there's only one problem: it looks like the court's decision was wrong.

The good news to come from this decision is that the Supremes correctly ruled that the Second Amendment protects the individual's right to bear arms -- rather than, say, merely protecting the right to form militias, which almost certainly would be (perversely) regulated by the state in this day and age.

But the bad news is that the court seemingly has once again exercised extrajudicial authority; today's ruling is inherently unconstitutional because the Second Amendment is part of a bill of rights that limits federal authority, not state or local -- D.C. enjoys status as a pseudo-state. In short, as consitutional scholar Kevin Gutzman explained here, the Supreme Court has no authority to strike down valid state laws.

Given the Supremes' history of constitutionally approving federal statutes governing activities over which the U.S. government should have no legal jurisdiction (eg., the regulation of abortion and guns easily comes to mind), we've been somewhat conditioned to believe that the U.S. Constitution applies universally. However, it does not. For example, the First Amendment begins by stating, "Congress shall make no law..." It is a very distinct protection against federal usurpation of the right to free speech, religion, etc.; it does not prevent, say, Wisconsin from establishing criminal laws originating in religious dogma (eg., anti-sodomy laws).

However, comprehension of the federal government's authority vis a vis that states was severely compromised with passage of the Fourteenth Amendment, having been henceforth controversially and extensively interpreted by the Supreme Court to give the feds sweeping power to regulate the states, including the notion that each of the tenets outlined in the Bill of Rights applies to every state. Given that the Constitution itself was penned to guard against an omnipotent central state, I find it almost impossible to believe that the framers would have consented to the idea that the Fourteenth Amendment could be wielded to overturn legitimate state laws.

Libertarians are split on this issue, so if it is correct that the Fourteenth Amendment extends the Bill of Rights to the states, then the Supreme Court got the D.C. gun ban decision right. However, if you, like me, believe the founders would have been aghast to learn that this amendment has been consistenly interpreted to allow for increasing federal authority over the states' rights they so jealously guarded, your only conclusion in this matter is that the highest court in the land should have allowed this law, however distasteful in its own right, to stand.

UPDATE: J.H. Huebert has more on the good -- indeed, great -- aspect of this ruling:

It notes that the Second Amendment does not grant the right to keep and bear arms, or any right at all -- it just stops Congress from infringing a "fundamental right" you already had according to "libertarian political principles."

Mr. Huebert notes further along in his commentary that we can probably expect to see more lawsuits applying the Fourteenth Amendment in the attempt to end gun bans in other cities, though he admits this may be a "dubious theory." More interestingly, he says this "wouldn't trouble me too much," no doubt indicating that if the Constitution is going to be misapplied so often to our detriment, it may as well work to our favor every now and then.

I know Grandma always told me two wrongs don't make a right, but such is life when you're bound by the state's hegemony. If we were truly free, there would be no state to confiscate our guns and our natural right to protect ourselves in the first place, so it certainly seems we're forced to "play the game" if we want even a glimmer of hope in wriggling out of the state's tyrannical stranglehold.

Comments

[mandr410]

In my reading of the opinions, I saw nothing about whether or not the Supremes could rule based on one locale's law or not.

I will say, as a very big proponent of personal gun ownership, I am dissapointed with the ruling. The Supreme's say it's un-Constitutional to ban "home self-protection". Duh! But that's really not a big problem. How many home invasions do we see compared to street crime? I want to see law abiding citizens have the right to protect themselves wherever they are - home, shopping, walking in a park, etc.

This is a vicious circle we're in. We have unarmed ourselves becuase of gun violence. Since we're unarmed, we depend on law enforcement for protection. Law enforcement cannot protect every person every minute, so criminals take advantage, usually with a gun.

Every citizen should be allowed to carry whatever means of protection he or she feels they need. Period.

[trevor]

I shoulda just said that!

Agree 100 percent.

[Wolf]

Mandr410 - I agree 100% with your assessment, however, the case before them was soley whether or not the DC gun ban was constitutional because it prohibited all gun ownership within the District. They had no authority to rule on the right to carry issue based on what was presented. It would kind of be like convicting a guy for stealing hubcaps when he was only in court for a parking ticket. In other words, right to carry wasn't presented as part of the plaintiff's case, so how could they issue a ruling?

I'm actually glad for that because it's my personal belief that had the scope of this case been any larger, the court may have ruled differentlyl, or may have refused to hear it altogether.

Having said that, I, like Trevor, am torn. This was a BIG step in the right direction for gun owners in this country and for those who are tired of our rights being infringed. But, if what Trevor's source says is true, this is a tainted win.

Frankly, I personally don't see how a state or local authority can infringe on a right that's guaranteed to every citizen at the Federal level. It's kind of like your national bank telling you that you are guaranteed 5% interest on your savings account, but your local branch telling you you can't earn any interest. That's just my opinion though, and I'm no constitutional law scholar.

[Wolf]

"...so it certainly seems we're forced to "play the game" if we want even a glimmer of hope in wriggling out of the state's tyrannical stranglehold."

So, Trevor... it's NOT always all black and white. I'm proud of you! I feel as though we've made a breakthrough in today's session. Hehe.

[trevor]

Wolf, the Constitution doesn't lay the foundation for the federal government to tell us anything - it actually PREVENTS it from doing so. Though you'd obviously never know that by watching these pricks operate.

It's startling how invasive and repressive our government is, at all levels, but especially at the federal. There's virtually nothing we do today that isn't somehow regulated by federal statute.

Even Ron Paul isn't nearly radical enough for me, and look at how most people react to his ideas.

[trevor]

Self-defense most certainly is black and white for me. We're just rats in cages hoping for a breadcrumb every now and then.

[Diane C. Russell]

Some of your argument seems irrelevant since DC is NOT a state, but a creature of the federal government, ultimately responsible to the will of Congress. So the court has not struck down a state law, it has struck down a law that was based on a federal, not state, grant of local authority.

[Wolf]

Well, you'll be happy to know that, if nothing else, this ruling makes me feel much more inclined to vote 3rd party, now that I know that Barack Insane Obama isn't going to come knocking on my door to take my guns on January 21st.

[Wolf]

Trevor, I wasn't talking about the self-defense aspect. I was talking about the legality of the ruling and "playing ball".

[trevor]

Diane - the SC has set extensive precedent that considers DC a state. If it truly were federal, this case would be a lot more straightforward.

[trevor]

Wolf - under that definition, we all 'play ball' whenever we pay taxes, register our vehicles, fork over money for drivers' licenses, etc etc.

To me, gray areas imply that one sees both sides of an argument. I can't think of any time that I would when it comes to the state's regulation of non-violent individual behavior.