Interesting take on Heller from Originalist Dr. Gutzman

[Ratzinger_p38]

http://ac360.blogs.cnn.com/2008/03/18/gun-control-the-second-amendment/

Gun Control & the Second Amendment
Posted: 05:19 PM ET

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.

- Kevin R.C. Gutzman, J.D., Ph.D.


While I agree with him on one part, I disagree with him on 'well DC is now a state, so too bad' position he is taking. No where in the Constitution does it say that giving DC any sort of home rule would therefor make it a state.

I agree that as written, the Constitution was not intended to be used to strike down state laws. However this changed with the 14th amendment.

Now, before some of you freak out and call him an 'anti' he is not one. But what he seems to advocating is the court take a position it has not in over 150 years, which they will not go back to. If they went the way he wanted, they'd also over turn all the drug laws (which I'd like them to, but we know the drug laws are even more holy than the gun laws) And let's face it - the worst gun control has always been at the federal level, where he would agree it IS unconstitutional.

 

[george29]

I respect much of what he wrote. I too feel that yesterday was a miss for a number of reasons and am beginning to understand why the NRA was silent, they more than others probably understand the politics involved. I may just renew my membership.

 

[hugh damright]

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.

I almost agree. But D.C. is not a State, it is a federal district. All D.C. laws must be approved by Congress. If the Second Amendment limits Congress, and all D.C. laws must pass through Congress, then wouldn't the Second Amendment limit Congress when passing D.C. gun laws?

Maybe the way it is supposed to work is for the Second Amendment to deny federal gun control powers over the States, and at the same time to limit the federal gun control powers over the federal districts.

 

[green-grizzly]

The court has long held that the other provisions of the bill or rights applied to the district, even before the 14th amendment.

Where do they get these professors? I read an article yesterday by a hotshot law professor who said that "the people" in the second amendment indicated that it was not an individual right. Has he never read the other amendments?

 

[Jaxon]

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.

It is true that constitutional review is the duty of all people, not exclusively the Supreme Court. However, Gutzman seems to be twisting that to say that the Supreme Court ought not to review affairs in D.C.

To say that Heller should be resolved only through the republican process is not a solution. I don't know all the facts, but I would like to believe the people living in D.C. who want to own handguns have tried to get the city to change the laws, or tried to elect people who would do so. I do know that registered Democrats outnumber registered Republicans ten to one in D.C. The guarantees against infringement of rights in the constitution were written specifically to protect the minority from the tyrannical will of the majority. How would you like to lose your rights just because 51% of your neighbors agreed you shouldn't have them?

 

[Samuel Adams]

Doctor Gutzman's piece creates a dilemma for those who respect the entire Constitution and not just the 2nd Amendment. Perhaps the only true means for redress in The District is Article V.

 

[Ratzinger_p38]

The court has long held that the other provisions of the bill or rights applied to the district, even before the 14th amendment.

I know, but what I was saying is even if DC were a 'state' (which it is not) it would not matter, thanks to the 14th.

So either way, he is wrong.

But what I should have mentioned earlier - notice where my link to it came from - Anderson Cooper's blog. Cooper is a notorius leftist who bring out any 'expert' to tell us we are all stupid.

 

[Kharn]

DC has a Constitution of its own, called "Constitution for the State of New Columbia" and it was enacted in 1987. Suprisingly enough, in the Bill of Rights section, the following gem appears:

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.

So it doesnt matter if the Bill of Rights applies to DC or not (which they do, and thus why Levy chose DC for his first case), because their own Constitution has the same right! I think that counts as Titanic-levels of fail.

Kharn

 

[rocinante]

By that logic we are subjects of our states with no protections at all under the bill of rights? I always thought these were inalienable rights of the people (i.e. legal breathing mcdonalds eating individual human entities) restricting all governing bodies in the U.S.

 

[Bartholomew Roberts]

Perhaps the only true means for redress in The District is Article V.

As others already noted, that was done around Amendment 14.

 

[FireBreather01]

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.

Isn't he ignoring the 14th - what happens when state laws conflict with federal laws? We are citizens of both our state and our country. If the SCOTUS cannot limit, or strike down, state laws that limit our Constitutional freedoms then we are no longer a federation - we're Europe; each state with it's own sovereignty and laws.

 

[misterwhipple]

Two quibbles:

1. All of the DC government's home-rule authority is delegated to it by Congress, and can be overridden or even revoked at any time. To assert that DC government is independent of Federal authority, whether de facto or de jure, is foolish.
2. Part of the nature of our Republic is that some things are not subject to majority rule. They're called rights, and the "republican process" to which the gentleman refers is neither the only nor the preeminent means of their legitimate preservation.

(The 14th amendment has already been mentioned elsewhere. I won't belabor the subject of incorporation)

 

[Samuel Adams]

As others already noted, that was done around Amendment 14.

The original intent of the 14th A was strictly for newly freed black slaves. IMHO, there is no compromise in the original intent yet most of the Constitution and its Amendments have been bastardized beyond recognition.

 

[Jim March]

He's *completely* ignoring the 14th - among other problems.

Barron v. Baltimore does indeed say that the BoR doesn't apply to the states. You can actually make a case otherwise, along the lines of "the core constitution says it applies to the states, as do to the amendment".

But set that aside for a moment. Barron was decided the way it was. Which led to state-level abuses of the whole BoR - as one example, by 1858 South Carolina had passed a law calling for the death penalty for any preacher who preached anti-slavery from the pulpit. Violating those pesky "free speech" and "freedom of religion" trivialities.

John Bingham (primary author of the 14th) specifically said he was overturning Barron...and mentioned that the 2nd Amendment was one of the pieces of the BoR particularly valuable to newly freed blacks against the proto-KKK first experimenting with bedsheet fashions.

Way to go, "professor". Go read Akhil Reed Amar's "The Bill Of Rights" interspersed with period Bingham and company quotes...

 

[HuntAndFish]

Wow. I didn't realize that "originalist" meant "nutty".

When it comes to the Second Amendment, then, D.C. is a state, and the Second Amendment does not restrict its policy-making discretion.

Even without the 14th Amendment this is wrong. D.C. is a federal district, not a state. The powers of a State are granted by the people of that State. The powers in DC are granted by Congress. Congress cannot grant a power it does not itself possess. And it does not have the power to infringe on the people's right to own and bear arms. Therefore any powers granted to DC by Congress are similiarly limited. The SC is the appropriate venue for Heller's appeal.

 

[BridgeWalker]

What Jim said.

I am constantly perplexed when people cite overturned law or law overturned in significant part to make some kind of point about current law.

The fact is that we as a nation have embraced Federalism a whole lot more in the past couple of centuries, as evidence by the very strong likelihood that virtually no one reading this would conclude that in the phrase "we as a nation" I was referring to the citizens of Michigan.

We kind of had a war about this.

No, neither the Civil War nor the 14th Am. was just about the slaves. It was in great part about the power of the FedGov to enforce certain, specific standards of conduct for state governments as against their citizens. One of those standards was about not having slaves.

 

[geekWithA.45]

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

This is the sound of an academic in love with the sound of his own voice.

The Constitution is *very* explicit on DC's status.

DC = "pseudo state" is a concept dragged directly out of Dr. Gutzman's butt.

Apparently, being an originalist also involves ignoring Amendments 11+, and especially #14.

 

[Phil Lee]

george29 quoted from United States v. Cruikshank (1876). He should also have quoted from the dicta in Presser v. Illinois, 116 U.S. 252, 265 (1886). There the court stated that even setting aside the Second Amendment,

the states cannot prohibit the people from keeping and bearing arms so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.

In Presser, the Court recognized that one intent of the Second Amendment was to insure the people had access to firearms so that they were skilled in their use and able, because of that skill, to be a part of the military or law-enforcement ready reserve of the United States. The DC gun ban effectively denies the United States the part of its public security reserve residing in DC and is unconstitutional for that reason in addition to other reasons.

 

[Bartholomew Roberts]

The original intent of the 14th A was strictly for newly freed black slaves.

Certainly that was a driving force behind the 14th Amendment; but until now I have never heard anyone claim that only newly freed black slaves were intended to enjoy the protection it offered. Given that the very first Supreme Court interpretation of the amendment (Slaughterhouse Cases) involved neither blacks nor slaves, I would have to disagree with your unique take on this.

 

[BridgeWalker]

Given that the very first Supreme Court interpretation of the amendment (Slaughterhouse Cases) involved neither blacks nor slaves, I would have to disagree with your unique take on this.

Well, but they ruled against the slaughterhouses, on the grounds that they 14th Am. couldn't be interpreted so broadly as to include the members of a specific profession. That would be an over broad interpretation even by today's standards.

However the slaughterhouse cases did not limit equal protection to blacks for purposes of ending slavery. Those cases did impose that limitation, but on the ban on involuntary servitude, not equal protection.

 

[Vibe]

I'm afraid I must disagree with his position. As I see it, it has been properly found that the right to "keep and bear" arms (among others) was not "granted" by the Constitution, but existed in it's own right beforehand and was "only" recognized in the Federal BOR. As such, even the States, bound as they are to honor the Constitution of the Union to which they voluntarily joined, MUST also honor the basic tenets of Rights enumerated in that document. To do otherwise IS a violation of the pledge to support that Union. They are of course free to recognize additional privileges and liberties as they see fit, without the requirement that any other state do the same. But the basics, as spelled out in the DOI, Constitution and BOR , were meant to be the common binder.

 

[legaleagle_45]

Hard to believe this guy is a lawyer. While DC is considered a "state" for some purposes, it has always been subject to the full limitations of the BoR's.

The Supreme Court has consistently held that the Bill of Rights are in effect in the District. See O’Donoghue v. United States, 289 U.S. 516 (1933); Downes v. Bidwell, 182 U.S. 244(1901)).

The mere cession of the District of Columbia to the Federal government relinquished the authority of the states, but it did not take it out of the United States or from under the aegis of the Constitution. . . . If, before the District was set off, Congress had passed an unconstitutional act
affecting its inhabitants, it would have been void. If done after the District was created, it would have been equally void; in other words, Congress could not do indirectly, by carving out the District, what it could not do directly. The District still remained a part of the United States, protected by the
Constitution.

And that is not even taking into account the 14th...

Essentially, Mr. Gutzman argues that DC is treated as a state for many purposes and thus the BoR's are not "directly" applicable to DC. What Mr. Guzman forgets is that, like states which have their own analog BoRs, DC has its own "state" BoR's which are those contained in the US Constitution. It draws it power directly from the federal government and its powers are limited by that document. To even suggest otherwise is foolish and idiotic.

 

[BamaHoosier]

I've never gotten this deep into the 2A,but seems there's lots of nuts and bolts that complete it.Like an iceberg,what you see on the surface is just a small portion.I've always felt it's a right to defend one's self;that's natural instinct at work.

 

[jenaele]

Isn't he ignoring the 14th - what happens when state laws conflict with federal laws? We are citizens of both our state and our country. If the SCOTUS cannot limit, or strike down, state laws that limit our Constitutional freedoms then we are no longer a federation - we're Europe; each state with it's own sovereignty and laws.

First of all, go read the 300+ page constitution of the European Union sometime before making such a ridiculous comparison.

That remark aside, you are right on the mark in describing the union as a union of sovereign states. The federal government is never given any authority in the Constitution to enforce any law or policy on the states. As someone else pointed out, we fought a war; but war does not make right.

 

[hugh damright]

If the SCOTUS cannot limit, or strike down, state laws that limit our Constitutional freedoms then we are no longer a federation - we're Europe; each state with it's own sovereignty and laws.

That reminds me of what Hamilton wanted i.e. a federal court in every State to negate their laws. But, of course, the US Constitution frames a different sort of government. And, while some intended the 14th "Amendment" to change our frame of government, I think that such a thing is beyond the scope of amendments.