Politics & Policy

A Second Amendment Strategy

The Supreme Court, not Congress, must blow away the gun ban.

The House of Representatives, this week, has passed the D.C. Personal Protection Act (H.R. 3193), which would overturn a 28-year ban on handguns in the nation’s capital. The Senate version (S. 1414) won’t be considered until after the election. In the meantime, the usual suspects are raising the usual arguments against letting D.C. residents defend themselves. These arguments are bogus, and the legislation should not be defeated because of them. Even so, there are important reasons for Congress to step aside and leave this matter to the courts. In a nutshell, here’s the erroneous case, then the legitimate case, for Congress to butt out.

The first erroneous argument was predictably made by Del. Eleanor Holmes Norton (D., D.C.): “We have got to fight every intrusion into our self-government.” Nonsense. Congress, as expressly set out in Article I of the U.S. Constitution, has plenary power over the District and every member of Congress has an independent, affirmative obligation to uphold the Constitution. If the District’s handgun ban violates the Second Amendment–as it does–then Congress should act to defend D.C. residents’ Second Amendment rights.

The second erroneous argument, as made by the Washington Post, is that Congress should not use its plenary power in a supposedly local matter because “the District is hardly unique.” Wrong again. The District is indeed unique–it’s a regular contender for the dubious title of “murder capital of the nation.” At the same time, it has the most draconian gun laws of any major city–banning everyday, garden-variety pistols of the kind that innocent victims in D.C. should have a right to use within their homes for self-defense. If “reasonable” regulations are those that prohibit bad persons from possessing massively destructive firearms, then the District’s blanket prohibitions are patently unreasonable. The Post got it right in an editorial two years ago: “Some gun laws–Washington’s notably among them–sweep more broadly than any individual right can reasonably be read to permit.”

The D.C. government, a creature of Congress, is constrained no less than the federal government itself by the Second Amendment. Until 1868, when the 14th Amendment was ratified, the Bill of Rights applied only to the federal government. But unlike most of the other ten amendments, the applicability of the Second Amendment to the states has not been resolved. Yet because the District is not a state and is controlled by Congress, that complex, widely debated question need not be addressed when D.C. law is challenged on Second Amendment grounds.

Nonetheless, there is a valid reason to oppose the D.C. Personal Protection Act. Two Second Amendment lawsuits filed by decent, peaceable, upstanding D.C. residents are now pending before the U.S. Court of Appeals for the D.C. Circuit. I am co-counsel in one of those suits, which was filed by six plaintiffs who simply want a handgun at home to defend their lives and property. If the pending bill is enacted, both lawsuits will be dismissed as moot. After all, plaintiffs cannot challenge a law that no longer exists.

Otherwise, the lawsuits could well be headed to the Supreme Court; and that’s where they belong. The citizens of this country deserve a foursquare pronouncement from the nation’s highest court about the real meaning of the Second Amendment for all Americans–not just the residents of D.C. Presently, because the Court hasn’t resolved its view of the Second Amendment, the right to keep and bear arms extends only as far as each state’s constitution or statutes permit. That’s not good enough. A Second Amendment right without a legally enforceable federal remedy is, in some states, no right at all.

Some Court watchers fear a hostile reception. Maybe so. But if a Republican president is filling vacancies, the Court will probably lean toward a more vigorous assertion of Second Amendment rights by the time the two cases are reviewed. More important, if a good case doesn’t reach the nine justices, a bad one will. Spurred by Attorney General John Ashcroft’s endorsement of an individual right to bear arms, public defenders across the country are invoking the Second Amendment as a defense to prosecution. How long before the high court gets one of those cases, with a crack dealer as the Second Amendment’s poster child?

Yes, the rights of D.C. residents can be vindicated by either legislation or litigation. But a narrow bill aimed at the D.C. Code will do only part of the job. The bill could be repealed by the next liberal Congress. D.C. officials might find ways of skirting the bill’s provisions by exercising their bureaucratic discretion. And the bill would have no effect outside of the District. That means, of course, that it would have negligible impact on gun owners’ rights when contrasted with an unambiguous proclamation, applicable across the nation, from the U.S. Supreme Court.

Robert A. Levy is senior fellow in constitutional studies at the Cato Institute and author of the forthcoming book Shakedown: How Corporations, Government, and Trial Lawyers Abuse the Judicial Process, available in November.


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