Bench Memos

NRO’s home for judicial news and analysis.

Anything Goes


Today the Washington Post’s editors are upset that the Senate bill to give D.C. a House seat carries an amendment to protect the rights of gun owners who reside in the District.  The editors write that the bill as it now stands “would strip D.C. officials of their rightful authority to regulate guns,” the senators “not trusting [the District] to run its own affairs.”

But the Post’s objection can only be based on some abstract moral ground, not on any constitutional notion of “rightful authority.”  For the only constitutional argument that has been advanced by the defenders of this abomination of giving the District representation in Congress is that, under Article I, section 8, clause 17, the Congress can do anything it likes where the nation’s capital is concerned.  (And anywhere else the government owns property, as Robert Alt points out.)  The clause gives Congress a power of “exclusive legislation” over the capital district, and this is said to trump other provisions in the Constitution that plainly require every member of Congress to come from a state, to be elected by citizens of a state, and to run in elections administered by a state.

So by the constitutional logic the Post evidently prefers, the people who live in the District–unlike the people of any state–have no rights whatsoever that are not the gift of the Congress, entirely subject to be granted and withdrawn as Congress sees fit.  The District may shortly have a seat in the House.  Maybe a future Congress will give it senators too.  Unlike any other jurisdiction represented in the Congress, the District could at some future date lose these privileges.  Nothing in the Constitution would stand in the way, even under the theory preferred by the advocates of D.C. representation.

Maybe Congress could require that D.C. residents own guns.  Or it could quarter troops in private homes in Georgetown.  Or it could authorize issuance of general warrants to D.C. police to batter down any door they like to solve the crime problem in Washington.  Or Congress could re-segregate D.C. schools.  Or maybe it could subject the Washington Post to prior restraint.

Parade of horribles?  Sure.  But it’s the Post, not I, that has signed on to a theory of the Constitution that frees Congress of any and all limitations on its power where the District is concerned.


Subscribe to National Review