20 October 2009

Kevin Gutzman on DC v. Heller

I just bought a copy of Prof. Gutzman's The Politically Incorrect Guide to the Constitution where he left out any commentary on the Second Amendment. I found this interesting since the Politically Incorrect Guides take the "pro-gun" side of the issue. This is what I found:

March 18, 2008
Gun Control and the Second Amendment
Posted: 05:19 PM ET
Kevin R.C. Gutzman, J.D., Ph.D.

Neither side has it right in the Second Amendment case currently before the Supreme Court.

District of Columbia v. Heller is an appeal from a federal appeals court’s decision that the D.C. gun control laws violate the Second Amendment. The circuit court’s decision reflected what I believe is the emerging scholarly consensus around the position that the Second Amendment involves an individual right to keep and bear arms.

Gun control advocates on one side and gun rights advocates on the other dispute this question. Since I am known as an originalist, I was asked to sign an amicus brief arguing that the Second Amendment bans laws like D.C.’s. I refused to sign.

Does that mean that I do not believe that the Second Amendment reflected an individual right to keep and bear arms? No, it means that I do not believe that the District of Columbia is governed by the Second Amendment.

Why? Because the District of Columbia, insofar as it behaves as a state, is properly treated as a pseudo-state by the Supreme Court.

The original understanding of the Bill of Rights, including the Second Amendment, was reflected in the Bill’s preamble. That preamble says that the Bill of Rights was added to the Constitution "in order to prevent misconstruction or abuse of its [that is, the federal government’s] powers." It was not about empowering federal judges to strike down state laws, in other words, but about limiting federal power.

The Supreme Court reflected this understanding in the 1833 case of Barron v. Baltimore (1833). There, for a unanimous Court, Chief Justice John Marshall said that the Bill of Rights limited only the powers of the federal government, not those of the states. This was the only significant decision in which Marshall came out for a limitation on federal power; he did so because what he was saying was indisputable.

One might counter by saying that the District of Columbia is part of the federal government. Yet, Congress long ago delegated home rule functions to D.C., and it allows residents to elect mayors, city councilors, and a delegate to Congress. When it comes to the Second Amendment, then, D.C. is a state, and the Second Amendment does not restrict its policy-making discretion.

This is not to say that gun control laws are a good idea. It also does not mean that D.C. residents do not have a right to keep and bear arms. What it means is that if they want that right to be respected, people in D.C. should take that up with their own government, not end-run the republican process by trying to get the Court to overturn its valid laws.

If the conservative majority on the Supreme Court rules in favor of Mr. Heller and against the D.C. gun laws, it will be ruling against the original understanding of the Second Amendment.

Editor's note: Gutzman, an associate professor of history at Western Connecticut State University, is the author of The Politically Incorrect Guide to the Constitution and, with Thomas E. Woods, Jr., of the forthcoming Who Killed the Constitution? The Fate of American Liberty from World War I to George W. Bush

More Prof. Gutzman
9th Circuit "Incorporates" 2nd Amendment
8:43 AM PDT, April 23, 2009
Before the Supreme Court's Heller decision striking down DC's gun regulations as violations of the 2nd Amendment, I argued for the opposite outcome here: http://ac360.blogs.cnn.com/2008/03/18/gun-control- the-second-amendment/. In brief, I reasoned that under home rule, DC was a quasi-state, and that the Bill of Rights had been intended solely as a limitation on the Federal Government; therefore, I concluded, DC's government was not subject to the 2nd Amendment.

The Supreme Court disagreed. Today comes news that the 9th Circuit Court of Appeals has gone the Supreme Court one better, enforcing the 2nd Amendment against an actual state. The so-called Incorporation Doctrine, which has turned a bill of rights intended as a limit on federal legislative power over the states into an instrument of federal judicial power over the states, thus takes new territory.

All without any warrant from the Constitution.