University of Tennessee law Professor Glenn Reynolds has a piece to day in the NY Post, "Lawyers, Guns & Washington," discussing the legal angles of the upcoming Supreme Court case on the constitutionality of Washington, DC's ban of privately-owned firearms.
Glenn writes there are really just three types of rulings that SCOTUS can decide on:- The first is that the 2d Amendment is a "relic of an older era" that need to apply today, but that, of course, leave open the question of what other parts of the Bill of Rights can be similarly discarded.
- The "the court can find ... that the Second Amendment supports an individual right on the part of law-abiding citizens to possess firearms of the sort that are in ordinary use."
It can find that the Second Amendment doesn't grant individual rights, but only protects the right of states to arm their militias (or "state armies," as some gun-control advocates put it). This would make the DC case go away, but at some cost: If states have a constitutional right, as against the federal government, to arm their militias as they see fit, then states that don't like federal gun-control laws could just enroll every law-abiding citizen in the state militia and authorize those citizens to possess machine guns, tanks and other military gear.But the District of Columbia is not a state, it is a federal district, founded by act of Congress and not even enjoying full representation in the Congress. In fact, for most of America's history, DC had no representation at all nor any political autonomy, being governed more or less directly by the Congress itself. As UCLA law prof. Eugene Volokh explains, this "states rights" view of the 2d Amendment,
... is probably among the strongest intuitive foundations for he view—after all, “State” appears right there in the text, seemingly referring to each state’s needs and interests. The reading would suggest the right might cover only those whom each state explicitly chose as its defensive force, perhaps a state-selected National Guard. And it would suggest the Amendment doesn’t apply outside states, for instance in the District of Columbia: “‘the District of Columbia is not a state within the meaning of the Second Amendment and therefore the Second Amendment’s reach does not extend to it’” [citing the D.C. Circuit dissent].But if the 2d Amendment refers solely to the rights of states of the union to have "state armies," as Glenn puts it, and if DC is not a state within the meaning of the Amendment, then how can the District constitutionally have a National Guard?
I wonder whether this angle will come up before the court.
I still have the Tennessee Law Review with the first publication of the "Unpleasant" State's Rights 2A theory article as expressed by (ISTR) Glenn Reynolds and Don Kates.
I'm wondering if, having granted cert, the Supremes are not going to just try to thread some procedural needle and decide as narrowly as they possibly can.
We might get some interesting dicta; we might get some interesting minority/dissenting opinions. I expect very little from the SC these days.
Wow, news to me. I had no idea DC had it's own National Guard.
Does that mean the mayor of DC has the right to activate the DC Guard for civil emergencies, like a State Governor can?
That doesnt make a lot of sense to me. I think its pretty clear that by 'the state' the founders were referring to the nation, ie federal government. When they referred the states, they said 'the STATES', as in the 10th Amendment.
Moreover there is direct useage of 'state' to mean nation in the text of the constitution proper:
No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
Furthermore - that reading of the 2nd Amendment directly contradicts Article I, section 10:
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
The idea that the Bill of Rights grants the states the right to create a national guard to prevent a tyranical federal government, which then requires Congressional approval to exist, is nonsensical. Either that reading is erroneous or the 2nd intentionally amended Article I (in which case there must surely be some acknowledgement of this somewhere in the records of the day).
Go into the United States Code (USC) and search for "unorganized militia". Let me give you a clue: title 10 chapter 13 section 311.
http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=10&sec=311
So and attempt at restricting personal arms to the militia isn't going to give the gun-control people -- including DC -- much comfort. Almost all of their non-felon, male, citizens are members of a federal militia.
I should point out that I cleave concretely to the individual-rights interpretation of the 2A. My point in this post is not which interpretation is correct, or which SCOTUS will select, but on a possible implication of the states-rights view. That's all.
In another post, Eugene Volokh argues convincingly (IMO) that the use of the word, "state," in the 2A refers exclusively to a free people rather than those living under tyranny.
Completely off the top of my head and not knowing anything other than what I have read here, my bet is that the Court rules only on the District vs. State issue. The District is a quasi-state anyway and has been getting more state like rights as the years go by. Thus, I think the court can avoid the Gun issue by making it an entity issue. But then again, with 17 games to go and a 7 game lead, I thought the Mets were a shoo-in for the playoffs
As to the first option, I don’t think I would characterize it that way at all. There are a number of Constitutional provisions that the SCOTUS has decided lack justiciable standards. It’s not that the rights are antiquated; it’s just that the courts have not been able to determine a role for themselves, they say it’s a political issue. The tenth amendment. The Commerce clause is possibly an example. A lot of foreign policy issues, like treaty abrogation, are treated that way. I think Scalia believes that what is "cruel and unusual punishment" is such a provision. Not that these are antiquated provisions at all, but their expression and vindication must not be in the courts, but in Congress and the Presidency.
Not that I think the Court will go this way.
The short answer to your closing question is, the District can have a National Guard because the National Guard isn't the militia referred to in the Constitution. As confirmed by a Supreme court ruling dating back to some state's claim their Guard couldn't be sent overseas, the Guard is organized under the power of the federal government to raise an army, not the militia clause.
TOC: that's the kind of needle-threading I expect, even if we're wrong about that angle. If so, it might be that the Supremes took it up because they knew they could slip through that way.
The procedure/discussion for deciding certiorari has AFAIK never been documented, for any case. Each grant or denial of cert might as well be a Papal election.
Why would they take up an issue that the court has avoided for almost 70 years, only to dodge it?
Ah, Glen, Glen. Do all your shirts have a big zigzag pattern going around them? Do you play football with someone named Lucy? Does she hold the ball for you to kick and promise that this time she won't pull it away just as you deliver the kick? Is "AUUUUGHHHH!" in your vocabulary?
I would hope you're right, and a part of me does. The rest of me is far too saturnine for that.
If we both agree that the decision, when delivered, is on point for the US as a whole re The Inconvenient Second Amendment, I will buy you a really good sandwich or an imperial pint of your favorite quaff. I'll do my best not to quibble.
What will you put up against that as a friendly wager -- if we both agree that the outcome is pretty much one more dodge? The same?
Nort
It seems to me that Rev. Sensing answers his own question. Congress can create a national guard in the District because Congress can do almost anything in the district, including organizing a militia:
(Art. I, Sec. 8)
The same section provides:
No bet, Nort. It would be like guessing which way a deer is going to jump - I always get it wrong.
Well, who knows. Let's buy each other a virtual sandwich/pint and watch what transpires... :)