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The Right to Arms in the DC(!) Consitution

Today I was examining an on-line copy of the Washington, D.C., municipal code, and came across a startling item. The D.C. government has enacted a "Constitution" which it styles as the "Constitution for the State of New Columbia." Apparently this was enacted in 1987, and presumably it supersedes the "Constitution of the State of New Columbia" which was enacted in 1982.

In the Bill of Rights section of the 1987 Constitution is the following:

Sec. 102. Right to keep and bear arms.
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.

The public Westlaw site of the D.C. Code provides a short history of the 1987 Constitution: "Law 7-8 was introduced in Council and assigned Bill No. 7-154, which was referred to the Committee of the Whole. The Bill was adopted on first and second readings on April 14, 1987 and May 5, 1987, respectively. Signed by the Mayor on May 6, 1987, it was assigned Act No. 7-19 and transmitted to both Houses of Congress for its review."

Now, because the District of Columbia has not yet become the State of "New Columbia", the 1987 Constitution has not yet gone into effect. Nevertheless, the Constitution has some interesting implications for the DC handgun ban case for which the Supreme Court is considering petitions for a writ of certiorari.

First, the DC government in 1987 chose to create a new constitution which, unlike the 1982 constitution, contained a right to keep and bear arms. The decision made the proposed DC constitution more normal, in that the vast majority of American state constitution have a right to keep and bear arms.

Second, the DC constitution used language which exactly tracks the U.S. Second Amendment, and the language of several state constitutions: North Carolina, South Carolina, Alaska, and Hawaii. Notably, in 1987, the state court cases on this precise language recognized the right as an individual one which included the right to own handguns. See, State v. Kerner, 107 S.E. 222 (N.C. 1921); State v. Dawson, 159 S.E.2d 1 (N.C. 1968). Cf. State v. Fennell, 382 S.E.2d 231 (N.C. 1989); State v. Mendoza, 920 P.2d 357, 363 n. 9 (Haw. 1996) (not deciding what type of right the arms guarantee was, but stating that interpreting the arms right as both collective and individual, subject to state police power, would be consistent with the majority of other state constitutions); Morgan v. State, 943 P.2d 1208 (Alaska Ct. App. 1997) (holding right, in text that had been modified in 1994, is not violated by prohibition on gun possession by citizens on probation).

It is sometimes claimed (such as by DC lawyers in the instant litigation) that the Second Amendment phrasing is merely a protection of state militias from federal interference. The DC Constitution demonstrates the absurdity of the argument; nothing in the DC Constitution could overcome the Supremacy Clause and prevent federal control (pursuant to the U.S. Constitution) of the DC state militia. The only plausible explanation for the placement of the right to keep and bear arms language in the "Bill of Rights" section of the DC Constitution is that section 102 of the DC Constitution has precisely the same effect as every other section of the DC Constitution's Bill of Rights: to shield the individual rights of ordinary DC citizens from potential abuse by the New Columbia state government.

Accordingly, when DC lawyers argue to lower federal courts, and to the U.S. Supreme Court, that the language of the U.S. Second Amendment is not an ordinary individual right, they are making an argument which is decisively contradicted by the very constitution adopted by the government whom the lawyers are representing.

Second, DC's cert. petition makes the novel argument that the District of Columbia (an entity over which the U.S. Constitution grants Congress plenary power) is somehow already a sovereign state for purposes of the Second Amendment; they claim that the 1886 Supreme Court decision in Presser v. Illinois, which held that under the 14th Amendment Privileges and Immunities clause, none of the Bill of Rights are enforceable against states, immunizes D.C. today from the enforcement of the Second Amendment. Yet the New Columbia Constitution shows that D.C. wants to be a state and wants the exact language of the Second Amendment to be enforceable against D.C.

Strictly speaking, Presser is irrelevant, because D.C. is not yet a state, but even if D.C. were somehow considered a quasi-state, the D.C. Constitution shows D.C.'s desire to be subject to the language of the Second Amendment.

33yearprof:
This will cause headaches at Akin, Gump.
9.25.2007 5:30pm
Seamus (mail):
Faced with this language from the constitution of "New Columbia," I suspect the lawyers for the District will fall back on the position that it means exactly what it means in the U.S. constitution: nothing. (There is precedent for such an argument: Justice Scalia's likening the ninth amendment to an "inkblot".)
9.25.2007 5:32pm
TerrencePhilip:
*points and laughs* pahahahaha!

Brilliant find, David.
9.25.2007 5:40pm
TruePath (mail) (www):
I don't buy it.

All this shows is that some group in DC government back in 1987 wanted to protect gun rights. Now I see the appeal of assuming that whoever inserted this language into the proposed DC constitution must have assumed it was a meaningful statement and thus meant more than a mere guarantee of state's rights but I don't think this is actually true.

Quite likely what happened is that pro-gun elements of the government wanted language protecting gun rights in the constitution while other groups did not. This language was then probably inserted as a compromise under the assumption that it would place no new restrictions on the DC government. Now you might argue that people would have realized that in a state constitution this language would have a different meaning than the federal language because it could only protect individual rights. However, this undermines the very argument you are trying to make here. If indeed whether this language is in a state or federal constitution changes it's meaning and application then you can't draw any conclusions about the federal meaning from the state meaning.

Besides, even if we grant that this amendment was inserted believing it protected individual gun ownership so what? No one denies that some people believe that the 2nd amendment is an individual right. The fact that these people once had more power in the DC government is hardly relevant.
9.25.2007 5:43pm
Brett Bellmore:

(There is precedent for such an argument: Justice Scalia's likening the ninth amendment to an "inkblot".)


That would be, IIRC, thankfully non-Justice Bork.
9.25.2007 5:46pm
Ploni:
Off topic- but I couldn't find your e-mail address anywhere on your website. Where are Fred Thompson's answers to the questions you sent him? Has he chickened out from answering questions that require real answers and can't be taken care of with generic platitudes?
9.25.2007 5:47pm
John Burgess (mail) (www):
DK:

The only plausible explanation for the placement of the right to keep and bear arms language in the "Bill of Rights" section of the DC Constitution is that section 102 of the DC Constitution has precisely the same effect as every other section of the DC Constitution's Bill of Rights: to shield the individual rights of ordinary DC citizens from potential abuse by the New Columbia state government.


No, far more plausible--in fact, most likely--is that the lawyers putting together the DC Constitution tried to make it look as much as possible like the US Constitution in order to avoid nitpicking and spurious objections.

That they had no clue as to the ramifications of doing so is only par for the course in the DC government.
9.25.2007 5:52pm
Clayton E. Cramer (mail) (www):

(There is precedent for such an argument: Justice Scalia's likening the ninth amendment to an "inkblot".)
That would be, IIRC, thankfully non-Justice Bork
Correct me if I am wrong, but I believe that Bork's argument was not that the Ninth Amendment meant nothing (and was therefore an inkblot) but that judges had a habit of imagining what was underneath that inkblot, since there could be almost anything protected by it.

Of course, the real determination of what the Ninth Amendment protected is the rights that were not subject to governmental limitations in 1791—not what a judge in 2007 decided should have been protected.
9.25.2007 6:17pm
Clayton E. Cramer (mail) (www):
I'm not sure that this is actually a good argument to make. The Indiana Supreme Court in McIntyre v. State, 170 Ind. 163, 83 NE 1005 (1908) the view that "when a clause or provision of a constitution or statute has been readopted after the same has been construed by the courts of such state, it will be concluded that it was adopted with the interpretation and construction which said courts had enunciated."

In the McIntyre case, the Indiana Supreme Court used this reasoning to conclude that the Indiana Constitution of 1850, since it continued to use the language of the 1816 Constitution, had not changed the constitutional status of concealed carry. The Indiana Supreme Court in State v. Mitchell (Ind. 1833) found that concealed carry was not protected by the 1816 Constitution's RKBA provision.

By this same reasoning (which doesn't seem completely absurd), the presumption would be that the 1976 law was not going to be contrary to "New Columbia" RKBA provision.
9.25.2007 6:24pm
Smokey:
I'm having some difficulty understanding TruePath's post above.
Now you might argue that people would have realized that in a state constitution this language would have a different meaning than the federal language because it could only protect individual rights.
The Constitution is all about protecting individual rights from the government. Is it different for a state? DC isn't even a state, right? I guess I'm not following.

Also:
Besides, even if we grant that this amendment was inserted believing it protected individual gun ownership so what? No one denies that some people believe that the 2nd amendment is an individual right. The fact that these people once had more power in the DC government is hardly relevant.
But... the people in power at the time set the rules, didn't they? That's how the system works. It's up to those who come to power decades later to change the rules, if they want to and are able to. Otherwise, the original rules rule. Unless, of course, someone gets a judge to simply throw out, or deliberately misinterpret, what was originally intended. But if that's the case, we've moved from the rule of law to rule by judicial decree.
9.25.2007 6:50pm
Barry Kirk (mail) (www):
David,

This is precious. I'm hoping this has been brought to the attention of Robert Levy and Alan Gura. Although, being the professionals that they are, I wouldn't be surprised if they knew this already.

It would certainly be nice if this could be brought could be used to clinch the pro-gun argument.

Here's to hoping that the Supreme's grant Cert.
9.25.2007 6:50pm
PersonFromPorlock:
So, does the District of Columbia even have a militia, well-regulated or not? If not, shouldn't they be taken to task for failing their self-adopted constitutional responsibilities?
9.25.2007 7:10pm
RV:
No, far more plausible--in fact, most likely--is that the lawyers putting together the DC Constitution tried to make it look as much as possible like the US Constitution in order to avoid nitpicking and spurious objections.

That they had no clue as to the ramifications of doing so is only par for the course in the DC overnment.


Speaking as a former resident of the District, this is by far the best explaination for the language. To imply that there was rational thought behind the change is contrary to all the evidence.
9.25.2007 7:11pm
Clayton E. Cramer (mail) (www):

The Constitution is all about protecting individual rights from the government. Is it different for a state? DC isn't even a state, right? I guess I'm not following.
Several points here:

1. While a Bill of Rights is generally about protecting rights, it is not at all clear that all rights protected in a state constitution or the U.S. Bill of Rights are necessarily individual rights. For example, Amendment X protects the rights (or more properly, the powers) of states.

2. State constitutions often have some protections for individual rights, even if not part of a "bill of rights." The U.S. Constitution had a number of protections of individual rights squirreled away in various odd places, even before the Bill of Rights was added. For example, the ban on ex post facto laws.

3. While it is not the case that the Second Amendment was intended to protect a right of the states, this argument was used with respect to the Kansas Constitution's guarantee in City of Salina v. Blaksley (Kan. 1905). While the claim with respect to the Second Amendment is historically wrong, there is a way to validly misread the Second Amendment as protecting the right of the states to maintain militias from federal interference. The reasoning of the Kansas Supreme Court in using this argument with respect to the Kansas Constitution's Bill of Rights made absolutely no sense. It was not just historically wrong, but illogical. Why would a state constitution guarantee to the state the right to maintain a state militia?
9.25.2007 7:12pm
Brian K (mail):
Why would a state constitution guarantee to the state the right to maintain a state militia?
There's no reason to assume that the federal constitution and the state constitution guarantee the same rights. If the federal constitution already guaranteed an individual right what would be the point of putting it in a state constitution? They may have put it in state constitution to guarantee a more expansive set of rights than the federal government guarantees.
9.25.2007 7:27pm
newt:
While a Bill of Rights is generally about protecting rights, it is not at all clear that all rights protected in a state constitution or the U.S. Bill of Rights are necessarily individual rights. For example, Amendment X protects the rights (or more properly, the powers) of states.


The 10th Amendment allocates "powers" while "rights" are mentioned in a number of other places. Is a power the same as a right?

Can an attorney explain if there is a legal distinction between the two that is important?

It seems obvious to me that Rights wouldn't be granted to authorities (States or Federal Government) while powers would be. And Rights would be citizen oriented. But that's just a non legal inference. I'd love to see some explanation of this.

Newt
9.25.2007 7:29pm
Eli Rabett (www):
Porlock: The District of Columbia has National Guard units (Army and AF) There have been deployments to Iraq and Afghanistan. Thanks for the love.
9.25.2007 7:36pm
Justin (mail):
Yea, Porlock clearly hasn't been to any Nats or DCU games.
9.25.2007 8:03pm
Clark Neily (mail):
Yes, by statute D.C. has both an "enrolled" militia and an "organized" militia. Judge Silberman discusses the enrolled militia in Parker.

D.C. Code § 49-401 provides that "Every able-bodied male citizen resident within the District of Columbia, of the age of 18 years and under the age of 45 years, excepting persons exempted by § 49-402, and idiots, lunatics, common drunkards, vagabonds, paupers, and persons convicted of any infamous crime, shall be enrolled in the militia."
9.25.2007 8:17pm
eric (mail):

excepting persons exempted by § 49-402, and idiots, lunatics, common drunkards, vagabonds, paupers, and persons convicted of any infamous crime, shall be enrolled in the militia


So D.C.'s militia has five or six members, maybe more!
9.25.2007 8:24pm
dwlawson (www):
I'm curious as to the continued relevance of maintaining D.C. as a Federal District. I doubt the founders intended for such a large permanent population.

They should have representation and the way to give it to them is NOT to make D.C. some kind of mini-state or give it a voting House seat.

The civilian population of D.C. and all non-Federal buildings should revert to Maryland or Virginia or whatever state they came from.

End of (representation) problem. Governor Mayor Fenty can go back to being simply a big City Mayor.
9.25.2007 8:45pm
Smokey:
Thanks Clayton E. Cramer for the explanation.
9.25.2007 8:57pm
kevin r (mail):
dwlawson: That'd be Maryland. The part of DC that came from Virginia was already retroceded around the time of the Civil War.

eric: I laughed.
9.25.2007 9:21pm
REPEAL 16-17 (mail):
The part of DC that came from Virginia was already retroceded around the time of the Civil War.


The Virginia portion of DC (now Arlington, Va.) was "retroceded" to Virginia in 1846. That process should be repeated regarding the current DC.

As for the RKBA, I doubt the Supreme Nine will take it into. The New Columbia State Constitution (both version) are merely proposals. They have no legal force and I don't think any of the Justices want to give either of them anything close to legal force.
9.25.2007 9:55pm
Mike M.:
No it shouldn't! We in Maryland have problems enough without adding the Most Irresponsible City in America to our population.
9.25.2007 10:31pm
PAULV (mail):
Those proposals are clearly a penumbra
9.25.2007 10:34pm
V:
To Newt:

A "power" is a grant of ability to (legitimately) do something. A government of enumerated powers is not allowed to do anything for which it hasn't been delegated a power.

A "right" is a protection individuals have against the government, a recognition that the government cannot achieve what they have the power to do any way they wish.

For example, the government has the power to set up post offices. They don't have the power to set up medical offices. So setting up medical offices might be seen as prima facie unconstitutional, while setting up post offices wouldn't be. But let's say the government chose to set up post offices by dragooning, drafting, the first 10 adult males that walked by the post office building to work in the post office. The mere fact they have the power to set up post offices doesn't mean they can do it like THAT! Why? Because doing so would violate the individual's right to life and liberty.

At least, that's how this non-lawyer sees it.
9.25.2007 10:54pm
DC-ite (mail):

No it shouldn't! We in Maryland have problems enough without adding the Most Irresponsible City in America to our population.


So how is Baltimore doing these days?
9.25.2007 11:20pm
Dave D. (mail):
....." V ", You say that the Goobermint doesn't have the power to set up medical offices ? When, pray tell, was the V.A. dismantled ?

...I think Mr. Kopels discovery is.....A. Bite. of. FILET !!!!!!!
9.25.2007 11:55pm
Constitution Cowboy (mail):
DC couldn't become a state without amending the Constitution, Article IV, Section 3, "...; but no new State shall be formed or erected within the Jurisdiction of any other state;...", and the land currently making up the district would have to be returned to Maryland, and the seat of government moved to another area ceded by another state or states.

Those who live in DC live there by choice. Their lack of representation is a consequence of their choice to live there.

I believe the laws passed by the DC Council and Mayor are unconstitutional. The legislative powers in the district are exclusive to, and vested in, Congress; and Congress has not been granted power in the Constitution to delegate any of its powers.

Woody

Look at your rights and freedoms as what would be required to survive and be free as if there were no government. Governments come and go, but your rights live on. If you wish to survive government, you must protect with jealous resolve all the powers that come with your rights - especially with the Right to Keep and Bear Arms. Without the power of those arms, you will perish with that government - or at its hand. B.E. Wood
9.26.2007 12:12am
John Burgess (mail) (www):
If 'no taxation without representation' is the mantra used to justify DC statehood, I suggest that the opposite approach be considered.

As DC residents have very limited voting rights and no congressional representation, they should be freed of having to pay federal taxes.

This would permit DC to increase it already high rate of income tax to 20%-30% and residents would still come off ahead.

Extend the tax freedom to businesses and every corporation in America will seek to re-establish its headquarters on the Potomac.

There's be so much money in DC that it would become a wonder to behold, a true Babylon on the Potomac.
9.26.2007 12:42am
Dave Hardy (mail) (www):
Spinoff:

Argument: the second amendment should be understood as solely protecting a state's right to have a well-reg'd militia (or in a variant, the right of a person to serve in such a militia if the state should create one, i.e., a right to do something if a government affirmatively allows it... not much of a right).

Counterpoint: many states have provisions that track the second amendment. Does this mean that the state desired protection itself infringing its right?

Digression: it is ironic that, should some body every actually constitute this state of New Columbia ... it would be named after the new world's first, and downright obsessive, slave taker.
9.26.2007 12:46am
Justin (mail):
BTW, in terms of incorporating this into the merits brief, that's the kind of thing an enterprising young associate thinks up and a more pragmatic partner quickly rejects. It's an entirely different box of worms, and while it may be interesting to discuss on an informal leel, it will have no impact on the case at hands.
9.26.2007 1:29am
The Monster (mail):
US citizens who do not reside in any State, such as the folks in DC, PR, VI, GU, AS, etc., should be allowed to declare a state of citizenship, in which case they would pay taxes under that state's laws, and vote in that state's elections.

If that means that they'll choose a state with low or no state income tax, so be it.
9.26.2007 2:17am
Milhouse (www):
David Hardy: You think Columbus was the New World's first slave taker? Not by a looong shot.
9.26.2007 3:28am
K Parker (mail):
Rushing to Dave Hardy's defense, I can clearly see the implied word "European" in his statement; what's wrong with your reading skills? :-)

--------------------------
I.e. "the new world's first, and downright obsessive, [European] slave taker."
9.26.2007 3:55am
markm (mail):

Dave D. (mail):
....." V ", You say that the Goobermint doesn't have the power to set up medical offices ? When, pray tell, was the V.A. dismantled ?

IANAL, but this doesn't seem too hard: Congress has the power to establish, fund, and regulate the armed forces. That must necessarily include the power to establish pay and other compensation for the employees of the armed forces. VA services are delayed compensation - and I think the promise that they will take care of you if you get hurt is indeed a factor in recruitment, at least by greatly reducing the negative inducement of legless and blind veterans begging on the streets. (Nowadays most of the ones you'll see begging in army-surplus clothing are not really vets - they never could have passed the physical and psych exams, even if they've convinced themselves they served.) One might wonder whether wouldn't be far more effective to apply the money used in serving non-disabled and non-retired vets to a pay raise for those in the service, but that's a policy decision for Congress.

OTOH, I see no power to set up medical offices for the general population (or for anything resembling H. Clinton's or Edward's plans) - except by the usual over-extension of the commerce clause...
9.26.2007 10:43am
therut:
The problem with the government doing anything is waste and abuse. I remember when rural health clinics were all the rage. They got increased funding. I worked at one for a month and saw 5 patients. Yea that was a total waste. I have noticed one of the going scams now is hospice care in Nursing Homes. Why this is needed is beyond me. The nursing care is already provided. They have a new diagnosis "adult failure to thrive" they use to put patients on hospice care. In other words if you are losing weight and do not want a big medical work-up you have a terminal illness. It gets the .gov regulators off the back of the NH and well we just wait for the elderly to die. I am going to refuse for my patients to be "evaluated" by the vultures. Something stinks and I am not going to be part of the devious plan. There are patients that eat like birds and live for years. Why the push to put them on death roll is beyond me.
9.26.2007 11:57am
KevinM:
Two interpretation issues, one heuristic and one grammatical:

When a 1987 constitution quotes 18th-century language, how do we interpret it? Look to what the words meant in 1987, taking into account the prevalence of power pop and the death of disco? Look to what the 1987 "framers" thought the words meant in the 18th century? The mind reels.

And, in the "Eats, shoots and leaves" category...

The punctuation of the D.C. version omits the comma after "militia." To my mind, raised on 20th century grammar, that is a little clearer (and perhaps a tad less pro-private-possession?) than the original. D.C. retains the equally unnecessary but even less consequential comma after "arms."
9.26.2007 12:27pm
NaG (mail):
I see this as a perfect kind of footnote fodder that would lead a crafty majority of the Court feel safe in saying that they will go ahead and treat D.C. as a state for the purposes of this decision, and, oh, BTW, your own constitution then applies and enforces the Second Amendment anyway, so there's no difference in the analysis. That way they can sidestep the incorporation issue if they feel like it. I can see the leftists of the Court advocating this so that some gun bans are still possible under current law, and it gives more weight to D.C. being treated like a state for other issues, thus helping pave the way for D.C. statehood. But I don't think a majority of the Court will fall for this.
9.26.2007 12:36pm
Clayton E. Cramer (mail) (www):


Why would a state constitution guarantee to the state the right to maintain a state militia?

There's no reason to assume that the federal constitution and the state constitution guarantee the same rights. If the federal constitution already guaranteed an individual right what would be the point of putting it in a state constitution? They may have put it in state constitution to guarantee a more expansive set of rights than the federal government guarantees.
State constitutions had protections of individual rights because the U.S. Constitution and the Bill of Rights were generally understood as limiting only the power of the federal government in the antebellum period-—although there are a few state supreme courts, such as Georgia and Louisiana, who believed that the Second Amendment (among others) was a limitation on state power. But this was the exception; most state supreme courts accepted Barron v. Baltimore and rejected arguments that the Second Amendment limited state laws.

The claim made in City of Salina, however, was not finding that there was a right protected by the Kansas Constitution that was different from the Second Amendment, but found that it was protecting the right of the state to have a militia. But against whom does a state constitution protect? From a state government—not the federal government. A state constitution that attempts to protect the state from itself does not make any sense.
9.26.2007 1:56pm
Clayton E. Cramer (mail) (www):

I'm curious as to the continued relevance of maintaining D.C. as a Federal District. I doubt the founders intended for such a large permanent population.
Very true. I remember while reading the ratification debates for one of the states an Antifederalist criticism of the unique status of the District of Columbia. As he read it, there was nothing that required the federal government to extradite criminals who fled there from the various states, and over time, the District would be filled with criminals.

Well, he was right, but for the wrong reason.
9.26.2007 2:00pm
Dilan Esper (mail) (www):
Of course, the real determination of what the Ninth Amendment protected is the rights that were not subject to governmental limitations in 1791—not what a judge in 2007 decided should have been protected.

This assumes that the folks in 1791 didn't intend that the conception of which rights were reserved to the people might change over time.
9.26.2007 2:01pm
David M (mail) (www):
Trackbacked by The Thunder Run - Web Reconnaissance for 09/26/2007
A short recon of what’s out there that might draw your attention, updated throughout the day...so check back often.
9.26.2007 2:11pm
Gullyborg (www):

I'm curious as to the continued relevance of maintaining D.C. as a Federal District. I doubt the founders intended for such a large permanent population.

They should have representation and the way to give it to them is NOT to make D.C. some kind of mini-state or give it a voting House seat.

The civilian population of D.C. and all non-Federal buildings should revert to Maryland or Virginia or whatever state they came from.



I have an idea to expand on this: everyone who lives in DC should be required to declare a state of residence, and should then be under that state's jurisdiction and vote and pay taxes in that state (just as if they were temporarily living abroad). There should be no such thing as a resident of Washington, D.C. All city government should be dissolved immediately, and the district be placed under direct control by the federal government, with administrators appointed by the President and confirmed by the Senate (no more voting for Marion Barry).

Most people who live there would choose to become either Maryland or Virginia residents, because of the proximity. But then I am sure many would choose to declare themselves residents of the State of Washington for tax purposes. Of course, I would also encourage every state to enact some sort of residency requirement, to prevent people from spontaneously declaring themselves residents for no tangible reason.

We would then no longer need a DC Circuit, as there would be no DC residents. The DC bench could be absorbed into the other circuits. And there would be no DC code, at least not in the current sense. The appointed administrator would write a new set of administrative rules.

I know this all pretty far-fetched, but at least there would be no one living in DC without proper Congressional representation or rights under a State... and it would be more fair than simply dividing it up between MD and VA, since all 50 states have a stake in DC.
9.26.2007 3:07pm
Clayton E. Cramer (mail) (www):


Of course, the real determination of what the Ninth Amendment protected is the rights that were not subject to governmental limitations in 1791—not what a judge in 2007 decided should have been protected.


This assumes that the folks in 1791 didn't intend that the conception of which rights were reserved to the people might change over time.
They recognized that circumstances might change. That's why there's a provision for amending the Constitution as the needs change. And we've done it, repeatedly.

They refused to confront slavery, believing that it was going to wither away on its own. (And it might have, except for the cotton gin's invention, caused by another provision of the new Constitution—the one providing for national patents.) Amendment XIII fixed it.

Amendment XIV handled the question of whether blacks were citizens or not.

Amendment XV guaranteed that black men could vote on the same conditions as white men.

And when the public perception about women and voting had changed enough, first individual states gave them the right to vote, then we amended the Constitution to guarantee them the right to vote.

And we did the same to abolish poll taxes and literacy tests in federal elections (which effectively wiped them out in state and local elections).

And we amended the Constitution to guarantee the vote to 18 year olds.

So why is this process that has worked so well all along suddenly insufficient to take care of your pet group?
9.26.2007 3:47pm
Tony Tutins (mail):
Constitution Cowboy, seemingly this section did not prevent West Virginia from becoming a state:

DC couldn't become a state without amending the Constitution, Article IV, Section 3, "...; but no new State shall be formed or erected within the Jurisdiction of any other state;...",
9.26.2007 3:58pm
Clayton E. Cramer (mail) (www):

Constitution Cowboy, seemingly this section did not prevent West Virginia from becoming a state
My recollection is that West Virginia claimed that they weren't coming in as a new state at all—but were the lawful state government of Virginia.

No one believed it, but Virginia wasn't exactly in a position to argue that their Constitutional rights were being violated, since they were out of the building at the time. Nor could Virginia make much of an argument against West Virginians seceeding, having just done something rather similar.
9.26.2007 4:23pm
Ian Argent (mail) (www):
I had been thinking of the solution of requiring all residents to pick a state of residency (by filing income tax as a non-resident taxpayer of that state). The military already manages to do this; no?

The hitch I found was determining their residency location for the purpose of elections below the state level (US Reps, and state official).
9.26.2007 5:07pm
Seamus (mail):
My recollection is that West Virginia claimed that they weren't coming in as a new state at all—but were the lawful state government of Virginia.

Not quite. After the Commonwealth seceded, a number of representatives of the more unionist portions of the state (primarily from what later became West Virginia, to be sure), met in convention in Wheeling (safely under federal control) and asserted that the state government had effectively dissolved itself by attempting to secede, and that the convention was now the embodiment of the people's sovereginty. This convention created what was called the "Restored Government of Virginia." The federal government recognized it as the true government of the state, and even accepted as U.S. senators those people elected by the "Restored" General Assembly and sent to Washington.

This Restored General Assembly is what gave its consent to the establishment of West Virginia. Once West Virginia was admitted to the Union in 1863, the Restored Government moved to Alexandria. It had effective control of only those parts of Northern Virginia and Tidewater where the Union army held sway. (Even there, I doubt it did much actual governing, and that the real power was in the hands of the army.) In 1864, a "constitutional convention" was held in Alexandria that adopted a new constitution for the Commonwealth.

When Richmond fell in 1865, the Restored Government moved there from Alexandria and attempted to assert the authority that, up to then, the federal government had always pretended it had. But even the Restored Government wasn't good enough for the Radical Republicans in Congress, which in December 1865 refused to seat representatives elected under its authority, and even refused to seat Sen. John Carlile, who had been elected by the Restored General Assembly in 1861, who had served in the 37th and 38th Congresses, and whose term had not yet expired. Soon, the Restored Government was replaced by military rule pursuant to the Reconstruction Act of 1867.
9.26.2007 5:23pm
Seamus (mail):
(There is precedent for such an argument: Justice Scalia's likening the ninth amendment to an "inkblot".)

That would be, IIRC, thankfully non-Justice Bork

Oops. That's what I get for not checking to confirm that my memory was accurate.
9.26.2007 5:24pm
Seamus (mail):

All this shows is that some group in DC government back in 1987 wanted to protect gun rights. . . .

Quite likely what happened is that pro-gun elements of the government wanted language protecting gun rights in the constitution while other groups did not. This language was then probably inserted as a compromise under the assumption that it would place no new restrictions on the DC government.



I would be absolutely astonished if the "Constitutional Convention for the State of New Columbia" had a single delegate who could be described as one who "wanted to protect gun rights." There was probably no compromise. There was just the thought that copying the bill of rights from the U.S. Constitution would be like supporting motherhood and apple pie, and that they could rely on the judges to construe the language the same way the federal constitution was construed (i.e., to provide effectively no gun rights).
9.26.2007 5:34pm
Constitution Cowboy (mail):
State constitutions had protections of individual rights because the U.S. Constitution and the Bill of Rights were generally understood as limiting only the power of the federal government in the antebellum period-—although there are a few state supreme courts, such as Georgia and Louisiana, who believed that the Second Amendment (among others) was a limitation on state power. But this was the exception; most state supreme courts accepted Barron v. Baltimore and rejected arguments that the Second Amendment limited state laws.


The following from the First Congress where the Bill of Rights was crafted shows that the Bill of Rights was intended to apply to the several states due to the hodge podge of protections in the several states:

It may be said, indeed it has been said, that a bill of rights is not necessary, because the establishment of this Government has not repealed those declarations of rights which are added to the several State constitutions; that those rights of the people, which had been established by the most solemn act, could not be annihilated by a subsequent act of that people, who meant, and declared at the head of the instrument, that they ordained and established a new system, for the express purpose of securing to themselves and posterity the liberties they had gained by an arduous conflict.

I admit the force of this observation, but I do not look upon it to be conclusive. In the first place, it is too uncertain ground to leave this provision upon, if a provision is at all necessary to secure rights so important as many of those I have mentioned are conceived to be, by the public in general, as well as those in particular who opposed the adoption of this Constitution. Besides, some States have no bills of rights, there are others provided with very defective ones, and there are others whose bills of rights are not only defective, but absolutely improper; instead of securing some in the full extent which republican principles would require, they limit them too much to agree with the common ideas of liberty.


Note in particular, the part I posted in bold.

You can add Texas to the list of states who believed the Second Amendment applied to the states:

"It is contended, that this article of the code, is in violation of the constitution of the United States, and of this state. The clause in the constitution of the United States, that it is said to be in violation of, is the 2d article of the amendments: "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." O. &W. Dig. 7. The clause in the constitution of this state, which it is said to violate, is the 13th section of the bill of rights: "Every citizen shall have the right to keep and bear arms, in the lawful defense of himself or the state." O. &W. Dig. 14.

The object of the clause first cited, has reference to the perpetuation of free government, and is based on the idea, that the people cannot be effectually oppressed and enslaved, who are not first disarmed. The clause cited in our bill of rights, has the same broad object in relation to the government, and in addition thereto, secures a personal right to the citizen. The right of a citizen to bear arms, in the lawful defense of himself or the state, is absolute. He does not derive it from the state government, but directly from the sovereign convention of the people that framed the state government. It is one of the "high powers" delegated directly to the citizen, and "is excepted out of the general powers of government." A law cannot be passed (p.402)to infringe upon or impair it, because it is above the law, and independent of the law-making power." - Texas Supreme Court Decision, Cockrum vs State of Texas, 1859.


Woody
9.27.2007 12:36am
C. Norris (mail):
Rights, Powers, and Commas

Rights are Natural. You are born with rights. You have the natural right to breathe, to eat, and to reproduce. Rights are more than obvious and rights are basic. Rights are also profound. A right is an act that you can exercise without reducing the quality and quantity of another persons enjoyment of the same right. My right to vote does not diminish your right to vote, though they may compliment or cancel each other according to who we vote for or against. Rights are not "zero-sum", but are expansive.

Powers proceed from the rights of men to form a government in order to protect these "Natural Rights". Powers are "collective", not individual, and are subordinate to rights. In the entire text of the US Constitution only "people", "persons" or "person" have rights and only government has "powers". The terms "Rights" and "Powers" are absolutely NEVER used interchangeably in the entire document. Hence there is no, "States Rights" in the Constitution (nor should there be, a state has no right to live). "Powers" are definitely "zero-sum" and limit government. However, "the people", do retain any left over "powers" (such as they are) in the 10th. Amendment (such as it is).

The Founding Fathers did not play fast and lose with the language and context of the U.S. Constitution. Terms such as "Collective Rights", or "Peoples Power", do not appear in the Constitution because they are, in any context of human affairs, oxymoron's. They deserve the same grammatical and legal graveyard as the infamous, "Separate but Equal"!

Each right mentioned in the Bill of Rights is always accompanied by a corresponding clause that restrains the power of government to effect that right. For example: "Congress shall make no law" (1st Amend)..."shall not be infringed" (2nd)..."No soldier shall" (see Engblom v. Carey, 3rd.)..."The right of the people to be secure in their persons...shall not be violated...but upon probable cause...warrants issued...supported upon oath (4th.) And so on. The Constitution is constant in restraining government's powers regarding the peoples rights.

However, comma's and their usage is not as constant as the Constitution. Furthermore, a comma is not a word, it has no meaning other than as punctuation subject to fashion. Though punctuation is important in the readability of the written word, whether a sentence has one comma, three commas or no comma, a comma does not alter the intent or meaning of the author but only the perception of the reader. The author, if available, is the true arbiter of the meaning (Original Intent?) of the sentence. Punctuation, either excessively elaborate, omitted for clarity or by ignorance, should never be permitted to reverse the meaning of the words of a sentence. We all have read the 2nd. Amendment with anywhere from none to four comma's and,..."the right of the people...shall not be infringed",...still retains its same basic meaning. Comma's have their place in grammar and they should stay there. A comma with "meaning" is, well, Orwellian!

C. Norris.
9.29.2007 5:34pm