Saturday, August 30, 2003

If D.C. is not a state, does the Second Amendment even apply?

There is movement to over turn the District's ban on handgun ownership (the law in D.C. essentially says you cannot own a "sawed-off shotgun, machine gun, short barreled rifle or pistol.") The usual gun-rights argument relies on the misinterpretation of the Second Amendment – typically just referring to the last part of it. Of course reading the entire amendment clearly narrows the right to own a gun to its use in a militia. But also, it is specifically referring to the states:

"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."

Since the main reason the court has recently denied full congressional representation to the District is because it is not a state, than the second amendment may not apply either. D.C. does not have laws for the creation of a state-level militia - the laws that do refer to a militia in D.C. are talking about the National Guard, with the President as Commander-in-Chief. This is different than the states, which have separate laws allowing for the creation of a milita under the power of the governor. This question has in fact come up in the courts, and one District judge expressed his opinion that the amendment does not in fact apply to the District:

Nebeker, Associate Judge: I write separately to state my conclusion that the second amendment does not apply to the seat of national government. This amendment is to ensure "the security of a free State." State militias were essential to that end -- hence, the amendment. Nothing suggests that the founders were concerned about "free territories," "free protectorates" or a "free Seat of Government of the United States." … It may fairly be said that a federal militia is available in such places. Therefore, whatever may be said for the second amendment and its reach within the several states, I conclude first that it does not apply to the Seat of Government of the United States. (Sandidge V. United States, 520 A.2d 1057 (1987))

Concerning the Second amendment more broadly, a recent court ruling (UNITED STATES OF AMERICA, v. EMERSON, 270 F.3d 203 (5th Cir. 2001)) supported the theory of the individual's rights to own a gun. In that opinion, the court presents a lengthy analysis of the history that led up to the amendment. What is noteworthy about the quotes the court provides, is the clear misunderstanding (or lack of knowledge) of how the Constitution was going to function. This is not surprising since the Constitution was a very unique and complex document. Even for those who knew what was being proposed, it was easy to see how they could not comprehend how it was all going to play out. Certainly the concept of the balance of powers was unique, and so while today we understand the brilliance of it, there was a great deal of skepticism and fear of a powerful federal government.

There are several quotes in the court's opinion, but you can get the idea from these:

A Farmer, Exeter, New Hampshire FREEMAN'S ORACLE, January 11, 1788 (excerpts reprinted in Young, supra at 206) "An army, either in peace or war, is like the locust and caterpillers of Egypt; they bear down all before them--and many times, by designing men, have been used as an engine to destroy the liberties of a people, and reduce them to the most abject slavery. . . . Organize your militia, arm them well, and under Providence they will be a sufficient security."

A Ploughman, Winchester VIRGINIA GAZETTE, March 19, 1788 (reprinted in Young, supra at 303)
"And in order to rivet the chains of perpetual slavery upon us, they have made a standing army an essential part of the Federal Constitution, which the world cannot produce an instance of a more permanent foundation to erect the fabrik of tyranny upon; . . . to keep a standing army, gives cause to suspect that the rulers are afraid of the people, or that they may have a design upon them. If their designs are oppressive, the army is necessary to compleat the tyranny; if
the army is the strongest force in a State, it must be a military government, and it is eternally true,
that a free government and a standing army are absolutely incompatible."

Centinel II, PHILADELPHIA INDEPENDENT GAZETTEER, October 24, 1787 (excerpts reprinted in Young, supra at 59) "A standing army with regular provision of pay and contingencies, would afford a strong temptation to some ambitious man to step up into the throne, and to seize absolute power."

If you were to say these things today, people would think you were crazy. And since the "standing army" was not used in the way these people feared, the militias eventually became a thing of the past. Of course, even though it is outdated, the amendment is still law. But it is clear that the idea behind it was to be able to fight back against the federal government if it was to use the army to oppress the people. In theory, it might be useful in the future if we need to form militias to fight back against the federal government. And because of this, nowhere is gun ownership by law-biding citizens outlawed absolutely.

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