TriggerFinger


Seegars vs Ashcroft: Does the 2nd Amendment reach the Capital?


After concluding that the 2nd Amendment does not present an individual right, but rather a right limited to a state militia, the judge in the case undertakes to consider whether the District of Columbia is bound by the 2nd Amendment.


After concluding that the 2nd Amendment does not present an individual right, but rather a right limited to a state militia, the judge in the case undertakes to consider whether the District of Columbia is bound by the 2nd Amendment.

The analysis is meticulous in determining that the District of Columbia is not a State. This is correct. Unfortunately for the desired conclusion of the court, which had just spent a significant effort establishing that the 2nd Amendment does not (yet) bind the States, establishing that the District is not a State merely indicates that does fall under the jurisdiction of the 2nd Amendment.

For, if not to such federal territories as the capital, then to whom may the 2nd Amendment be applied? The collective rights argument, which this opinion earlier endorsed, suggests a prohibition solely on the federal government. And it is that same federal government which is granted authority over the capital by the Constitution. The government of the United States cannot delegate to the District of COlumbia powers which it does not itself possess, and the federal government is clearly bound from infringement upon the right to keep and bear arms. To deny this is to deny the protections of the entire bill of rights to residents of the District of Columbia.

Furthermore, the 2nd Amendment's language is not restricted to a particular subject. The right to keep and bear arms shall not be infringed; there is no room in that declaration for infringement against non-States. It is not that the States are protected from infringements, but that the federal government is prohibited from infringing. And what the federal government cannot do it cannot authorize others to do.

The court contradicts itself once again:

Accordingly, this Court concludes that 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. Thus, even if this Court were to find that there was support for the proposition that the Second Amendment protects the right of individual state militia members to possess firearms (i.e., the "limited individual rights" or "sophisticated collective rights" model), because the Court concludes that the District of Columbia is not a state for Second Amendment purposes, plaintiff Hailes would not have standing to challenge D.C. Code ? 7-2507.02 based on her association with a District of Columbia militia.

According to this opinion, the District of Columbia is not a State. Because it is not a State, the 2nd Amendment does not apply, even if the 2nd Amendment protects an individual right. Yet there is no support in the text of the Constitution for this view. The 2nd Amendment is a restriction upon the powers of the United States, and a protected right of the people, not a protected right of the States. The prohibition does not depend upon the nature of the territory.

The District of Columbia, in fact, is one of very few places in the United States that are governed solely under the authority of the United States. If the court wishes to hold the 2nd Amendment as unincorporated, capable of protecting only against a federal infringement rather than a State infringement, then it must acknowledge that the District of Columbia's gun laws are derived from the United States and are almost uniquely vulnerable to challenge on that basis.

The incorporation doctrine suffices to defend the gun laws of New York, Los Angeles, or Chicago against 2nd Amendment challenge, but it does not protect the District.

Unfortunately, I am neither a judge, nor a lawyer, and my word is not law -- even when my word is right.


This entry was published Sat Sep 24 10:43:35 CDT 2005 by TriggerFinger and last updated 2005-09-24 10:43:35.0. [Tweet]

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