A retired N.Y. judge sitting on a case for the District of Columbia recently ruled that the District government's prohibition against public carry of guns violates the 2nd Amendment. Currently, that rule is on appeal and the judge just issued a stay. While things are a little peculiar in this case, because D.C. is not in any State, this case will have enormous implications for all the states -- and that's all because of one fundamental mistake made in the courts -- the original sin of 2nd Amendment jurisprudence, if you will: Applying the 2nd Amendment to the states.
The 2nd Amendment was understood originally only as a restriction of federal power. Almost 140 years ago, SCOTUS held, in U.S. v. Cruikshank, that the 1st and 2nd Amendment did not apply to the States. They were created and adopted only as restrictions on the federal government. Now, the courts have a different understanding of these provisions -- and, with respect to the 2nd Amendment, this is the fundamental error.
The debate too often centers on whether the Amendment allows states to regulates per the "well-regulated militia" language. That is a misguided discussion. The fundamental question is whether the Amendment should have any meaning for or any application to the States. That is to say, the question isn't whether it allows States to regulate arms -- the question ought to be whether it limits States' police/safety powers. Based on the text and historical understanding, the answer to that question -- even today -- ought to be "no."
In 1876, in Cruickshank, SCOTUS held that the 1st and 2nd Amendment did not apply to the States. In subsequent years, SCOTUS has pretty much "incorporated" the whole Bill of Rights as applying to the states. The logic of Cruikshank -- and there was some -- was that the textual language of the 1st and 2nd Amendments dictated their reach.
The Cruikshank court ruled that the First Amendment right to assembly was not intended to limit the powers of the State governments in respect to their own citizens. The relevant language with respect to the 1st Amendment was the language that "Congress shall make no law...." The text is indelibly clear here -- unlike some of the other Bill of Rights provisions that make no reference to Congress or State government.
Having said that, with respect to the 1st Amendment, the later doctrine of incorporation -- the idea that the 14th Amendment does extend rights protections to offer limits on states -- offers a compelling reason to deviate from that understanding in Cruikshank towards the 1st Amendment. Given how fundamental individual nature of free speech and the free exercise of religion and the church/state separation are to our democracy, extending that to the states made sense. This protects the rights of people to agitate for their rights, whether they are struggling against federal or state oppression and/or indifference.
With regard to the 2nd Amendment -- it is clearly written as one to prohibit the federal government from interfering with State governments establishing well-regulated militias. The Cruikshank court wrote:
"The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendment means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government."
Sometimes, that federal piece gets lost when people start talking about the "well-regulated militia" bit. With incorporation, the jurisprudence has moved to say that the 2nd Amendment prevents both Congress and the states from infringing on the right to keep and bear arms. That was the fundamental mistake in our jurisprudence on the issue.
Discussing whether the 2nd Amendment contemplates state regulation -- and I've engaged in that unfortunate discussion -- is the big mistake. It's kind of like discussing how many angels can fit on the head of a pin. It's a distraction -- a pointless, irrelevant debate, if the real issue is whether the 2nd Amendment has any meaning or application for the States in the first place.
The original sin, in this case, was to 'incorporate' the 2nd Amendment to apply to the States and localities. The 2nd Amendment was meant solely as a hedge against federal control over whether people could have arms. If there is a provision where the federalism/states' rights principle was more clearly specified, I can't find it. This was meant purely to maintain State sovereignty at a time when the States were understood to have some level of national status -- a Union of independent, sovereign states.
Perhaps that principle -- the notion that the individual 'States' were still independent, sovereign States in the international law sense -- perhaps that linguistic, and archaic fiction should have died on the vine of secession. That is in large respect what has come with the 14th Amendment, extending the guarantees to all citizens, and as against the powers of the state government.
Personally, in light of the Civil War history, I could understand the impulse -- to allow the federal government to even restrict State militias, even if that seems to flatly contradict the text and purpose of the Amendment. One might even argue that the guarantees of Equal Protection under the 14th Amendment might necessitate federal involvement to secure the rights of individuals against oppressive State-run militias, or police.
For courts to go in the reverse direction -- to hold that the 2nd Amendment creates limitations on State governments -- seems unjustified in the text and the purpose. Reading the text of the 2nd Amendment, especially within its historical context as part of a Bill of Rights that limited only the federal government, I cannot agree the provision should prevent States from regulating arms in any way.
In fact, the provision seems to contemplate that States would, or at least ought to regulate in order to maintain militias. That seems to be what the Framers thought States ought to be doing. Maybe, gun rights advocates are right in saying that the provision does mean that States can't keep people from owning some arms -- but the text would seem to imply that states can keep a regulated militia.
To keep a "well-regulated Militia", states would have to dictate which arms people can keep (both so they have the right ones, and, so they don't have the wrong ones)...and also when or how they can bear them. After all, unless you're going to depend on militiamen to provide all of their own weapons AND all of their own ammunition, they're going to need some uniformity. Where is someone going to get ammo in heat of battle, if he has some antique Beretta or Luger, or Colt 45?
However, debating what rules the 2nd Amendment might permit or proscribe for States is exactly where the discussion goes off the rails -- and it's all because the courts now seem stuck with what is or should be a dubious premise: that the 2nd Amendment has any application to State legislation and regulations.
With respect to the District of Columbia, it gets a little more complicated, since D.C. isn't within any state. Does that mean that the federal gov't can't legislate within DC on arms, and thus that no one can? Is the DC gov't merely a surrogate and subject to the same constitutional stricture which, I argue above, would not apply to a State gov't? Perhaps, the Mayor and City Council stand in for a State gov't? Or, alternatively, because of the unique status of the District, perhaps both the federal gov't and the District government stand in as substitutes for a State gov't, with all the powers that would be available to a State, including, as I argue above, the right to regulate arms.
For me, that's the most logical result -- that the federal gov't and, by extension, the District gov't are sort of acting in loco parentis -- as surrogates for a State gov't.....in much the same way that the Court of Appeals in Virginia recently held that federally-run health exchanges ought to include the subsidies that would go with state-run exchange.
However, that is not where this case will go, based on the recent jurisprudence, beginning with the District of Columbia v. Heller case, which struck down the District's rules against ownership of firearms. Under Heller, the court found that the federal government and the District could not restrict ownership, on account of 2nd Amendment limitations. That rationale, however, also served the basis for a later case, McDonald v. Chicago, which created the national right to keep arms free from any state or local regulation. Looking at that history, it seems a strong likelihood that D.C.'s rules against public carrying of weapons will be struck down and that later cases will extend this new right to all 50 states.
All of that is happening only because of the courts' original error in deciding that the 2nd Amendment did more than just limiting the reach of the federal government.
Nothing in the Constitution should be read to limit the rules that states and localities can adopt for the protection of their citizens regarding the ownership and bearing of arms. States should even be free to maintain rules that would require citizens to have arms for mutual defense -- and they should be free also to restrict whether and when and what type of weapons citizens should have for their own purposes.
