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Monday, September 10, 2007

Murder, Incorporated

During his ACS-sponsored visit to Columbia Law School, Akin Gump partner and Supreme Court litigator Tom Goldstein briefly spoke about appealing the D.C. Circuit's invalidation of Washington, D.C.'s restrictions on gun ownership. His strategy is three-pronged:
1) argue that the Second Amendment is not an individual right, but rather attached to the formation of a militia -- a hoary and well-trod claim;
2) argue that the Second Amendment binds Congress, not the D.C. Council, the point that will be discussed in this post;
3) argue that even if one disagrees with arguments 1 and 2 and believes that the Second Amendment is an individual right that binds the D.C. Council, the law in question doesn't violate that reading of the Second Amendment because it is a reasonable restriction, not an outright ban (notwithstanding its being described almost universally as, well, a gun ban). Technically, the law allows private ownership of some types of weapons, including shotguns and rifles, but bans modern handguns. It therefore may fall within the Second Amendment as interpreted by those advocating tongue-in-cheek originalism -- that is, it may permit the weapons most predominate at the time the Second Amendment became part of the Bill of Rights.

But the argument that interested me was point 2, particularly because Mr. Goldstein suggested that Justice Scalia was the most likely to be sympathetic to it.
This surprised me, because 2 seems like an anti-incorporation claim, and my understanding was that even on this newly conservative Court, Justice Thomas was the only judge still maintaining that the 14th Amendment had little to do with the Bill of Rights and therefore unless they were clearly individual rights, those rights were enforceable only against the federal government, with the states free to run willynilly over freedom from establishment of religion (e.g., the five conservative justices' right not to have to say Protestant prayers in public schools).

However, the D.C. Council -- Washington D.C. itself, actually -- occupies a peculiar position with regard to the 14th Amendment, which is why it took a separate decision to de-segregate D.C. schools (which many of the same Congressmen who passed the 14th Amendment did want segregated). The 14th Amendment applies to the states, whereas the 5th Amendment applies to the District, and somehow Bolling held that a government action such as racial segregation can be so unjustified as to violate Due Process.

Argument 2, therefore, appears to require that the Court to believe that the Founders wrote a Bill of Rights in which a government entity's committing what by a state would be a violation of the 2nd Amendment, would not violate Due Process. The argument is premised on "[t]he fact that the Second Amendment was particularly designed to limit federal interference with state authority[, which] explains why its principles do not apply to state and local restrictions on guns. It similarly explains why the purposes of the Second Amendment are not implicated by laws limited to the District." In other words, if the 2nd was just meant to keep Congress from interfering with the state governments, it can't come into play when Congress isn't interfering with any state government at all. This requires a certain carry-over from argument 1; i.e., to believe argument 2, one must agree that the 2nd Amendment is not protecting an individual right, but instead is a federalism mechanism.

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