Tuesday, September 04, 2007

 

At least they didn't say it was "for the children"

DC Mayor Adrian Fenty and the city’s Attorney General Linda Singer take to the pages of the Washington Post to complain about not being able to continue to ban handguns in the District. Specifically, they discuss their decision to appeal a recent DC Circuit decision overturning the DC ban:

“As mayor and attorney general of the District of Columbia, we were deeply disappointed this year when the U.S. Court of Appeals for the D.C. Circuit declared that the District's longstanding handgun ban violates the Second Amendment.” Fighting for Our Handgun Ban

The dissent in that case argued, or more accurately, repeated an earlier assertion that the Second Amendment didn’t apply to the District:

“Its superfluity is even more pronounced, however, because the meaning of the Second Amendment in the District of Columbia (District) is purely academic. Why? As Judge Walton declared in Seegars v. Ashcroft, 297 F. Supp. 2d 201, 239 (D.D.C. 2004), aff’d in part, rev’d in part sub nom. Seegars v. Gonzales, 396 “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.” For the following reasons, I respectfully dissent.” Parker v. DC, Judge Henderson dissenting

Judge Henderson does not note in her dissent that Judge Walton had preceded that 2nd –Amendment-does-apply-to-DC line with this factoid:

“In any event, while the Fifth Circuit had to cast a shadow on the current viability of Supreme Court precedent that have commented on the scope of the Second Amendment to reach the conclusion that the Second Amendment protects an individual right to possess firearms, the Emerson Court’s assessment is of no moment here because, as noted above, the Fourteenth Amendment does not apply to the District of Columbia. Bolling, 347 U.S. 497.”

Bolling was decided the same date as Brown v. Board of Education, involved DC public schools and Chief Justice Warren’s opinion did indeed take note of the non-applicability of the 14th Amendment:

We have this day held that the Equal Protection Clause of the Fourteenth Amendment prohibits the states from maintaining racially segregated public schools. The legal problem in the District of Columbia is somewhat different, however. The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states.”

But CJ Warren managed to apply the 5th Amendment anyway to reach a decision consistent with Brown.

Meanwhile, the Mayor and AG argue:

“The District should have authority just like that of the states, if for no other reason than to avoid the absurd result that the nation's capital alone would lack the ability to take the steps the local government believes are needed to keep its residents safe.

They make this claim based on Presser:

Another longstanding Supreme Court precedent, Presser v. Illinois, establishes that the Second Amendment simply does not apply to state regulation of gun possession and use.”

Well, don’t take their word for it, read for yourself:

“The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes to what is called in City of New York v. Miln, 11 Pet.” PRESSER v. STATE OF ILLINOIS, 116 U.S. 252 (1886) (emphasis added)

Since the District is a creation of the Federal Government, it would be “an absurd result” (to coin a phrase) to think the Federal Government could create such legal entities to which the US Constitution’s protections of US citizens against the vagaries of the federal government do not apply. Clearly, if the 5th amendment applies to the District, the 2nd should also.

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