Posted by David Kopel:
The Right to Arms in the DC(!) Consitution(!?)
http://volokh.com/archives/archive_2007_09_23-2007_09_29.shtml#1190750734
Today I was examining an on-line copy of the Washington, D.C.,
municipal code, and came across a startling item. The D.C. government
has enacted a "Constitution" which it styles as the "Constitution for
the State of New Columbia." Apparently this was enacted in 1987, and
presumably it supersedes the "Constitution of the State of New
Columbia" which was enacted in 1982.
In the Bill of Rights section of the 1987 Constitution is the
following:
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.
The public Westlaw site of the D.C. Code provides a short history of
the 1987 Constitution: "Law 7-8 was introduced in Council and assigned
Bill No. 7-154, which was referred to the Committee of the Whole. The
Bill was adopted on first and second readings on April 14, 1987 and
May 5, 1987, respectively. Signed by the Mayor on May 6, 1987, it was
assigned Act No. 7-19 and transmitted to both Houses of Congress for
its review."
Now, because the District of Columbia has not yet become the State of
"New Columbia", the 1987 Constitution has not yet gone into effect.
Nevertheless, the Constitution has some interesting implications for
the DC handgun ban case for which the Supreme Court is considering
petitions for a writ of certiorari.
First, the DC government in 1987 chose to create a new constitution
which, unlike the 1982 constitution, contained a right to keep and
bear arms. The decision made the proposed DC constitution more normal,
in that the vast majority of American state constitution have a right
to keep and bear arms.
Second, the DC constitution used language which exactly tracks the
U.S. Second Amendment, and the language of several state
constitutions: North Carolina, South Carolina, Alaska, and Hawaii.
Notably, in 1987, the state court cases on this precise language
recognized the right as an individual one. See, State v. Kerner, 107
S.E. 222 (N.C. 1921); State v. Dawson, 159 S.E.2d 1, 9 (N.C. 1968).
Cf. State v. Fennell, 382 S.E.2d 231, 233 (N.C. 1989); State v.
Mendoza, 920 P.2d 357, 363 n. 9 (Haw. 1996) (not deciding what type of
right the arms guarantee was, but stating that interpreting the arms
right as both collective and individual, subject to state police
power, would be consistent with the majority of other state
constitutions); Morgan v. State, 943 P.2d 1208 (Alaska Ct. App. 1997)
(holding right, in text that had been modified in 1994, is not
violated by prohibition on gun possession by citizens on probation).
It is sometimes claimed (such as by DC lawyers in the instant
litigation) that the Second Amendment phrasing is merely a protection
of state militias from federal interference. The DC Constitution
demonstrates the absurdity of the argument; nothing in the DC
Constitution could overcome the Supremacy Clause and prevent federal
control (pursuant to the U.S. Constitution) of the DC state militia.
The only plausible explanation for the placement of the right to keep
and bear arms language in the "Bill of Rights" section of the DC
Constitution is that section 102 of the DC Constitution has precisely
the same effect as every other section of the DC Constitution's Bill
of Rights: to shield the individual rights of ordinary DC citizens
from potential abuse by the New Columbia state government.
Accordingly, when DC lawyers argue to lower federal courts, and to the
U.S. Supreme Court, that the language of the U.S. Second Amendment is
not an ordinary individual right, they are making an argument which is
decisively contradicted by the very constitution adopted by the
government whom the lawyers are representing.
Second, DC's cert. petition makes the novel argument that the District
of Columbia (an entity over which the U.S. Constitution grants
Congress plenary power) is somehow already a sovereign state for
purposes of the Second Amendment; they claim that the 1886 Supreme
Court decision in [1]Presser v. Illinois, which held that under the
14th Amendment Privileges and Immunities clause, none of the Bill of
Rights are enforceable against states, immunizes D.C. today from the
enforcement of the Second Amendment. Yet the New Columbia Constitution
shows that D.C. wants to be a state and wants the exact language of
the Second Amendment to be enforceable against D.C.
Strictly speaking, Presser is irrelevant, because D.C. is not yet a
state, but even if D.C. were somehow considered a quasi-state, the
D.C. Constitution shows D.C.'s desire to be subject to the language of
the Second Amendment.
References
1. http://www.stephenhalbrook.com/law_review_articles/presser.PDF
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