Wednesday, November 21, 2007

2nd Amendment and the Application to the DC Case

In the DC case, however, the USSC does not have an out based on State v. Federal Power. All DC legislation is the direct power of the Federal Government:
 
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.
 
If the 2nd Amendment is an individual right applied against the Federal Government, it would have to apply against any political entity derived from that power: Congress cannot delegate what it does not have.
 
The Miller case, as the only 2nd Amendment ruling we can point to, never says that the 2nd Amendment is a collective right: what is says is that the 2nd Amendment only protects weapons that can be used by the militia (and was factually wrong that sawed off shotguns have no use in the militia, especially since this was the interwar period and trench warfare was still considered the likely outcome of future wars). If the Court had notice that sawed-off shotguns were useful military weapons, it would not have ruled the way it did (and it might have reached the issue of individual or collective rights).
 
There can be little doubt that handguns are useful in the militia, since soldiers carry 9mm Baretta handguns in Iraq and Afghanistan today. DC's rule that not only bans "bearing" but "keeping" these weapons fails under the plain meaning of the text, and the ruling in Miller.
But the breadth of the potential ruling is minor: while the Federal government will be out of the business of banning weapons, the states will be untouched as the issue does not impact Incorporation.
 
And perhaps DC will gain some impetus toward a Constitutional Amendment that changes its status, and provides its residents both Federal representation, and removes Federal control.

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