D.C. Council poised to reject gun bill

[TPaine7]

Posted at 01:27 PM ET, 07/12/2011
D.C. Council poised to reject gun bill
By Tim Craig

The D.C. Council is poised to reject a proposal that would make the city government a federal firearms dealer, allowing it to sell and transfer guns to residents.

...

The council is slated to vote on Mendelson’s proposal late Tuesday afternoon. But during a Tuesday morning breakfast meeting it became clear the proposal is far short of the nine votes needed for passage.

...

“I don’t want Congress to have an excuse to legislate in this area because there is a chance we could lose,” Mendelson said.

...

Mendelson, a supporter of gun control, warns the District needs to act fast if it wants to keep Congress at bay. “Guns are a red flag for Congress, and we would be waving a red flag as a presidential election gets near,” Mendelson said.

http://www.washingtonpost.com/tim-craig/2011/03/09/ABM94lP_page.html

I hope they reject it. And I hope they take their sweet time finding a broom closet the appropriate distance from everything in the city that can serve as a gun store.

Congress should strip the District of all power to regulate guns. They already have the power under the Constitution. First, they have the power to rule the District outright. Second, even if the District were a state, they have the power--granted them explicitly in the Fourteenth Amendment--to overrule states and force them to respect the Bill of Rights.

Stupidity is such a wonderful trait in an enemy of freedom.

[Unvanguard]

1. I just love it when people think DC should be treated as a colony. n/t

[TPaine7]

2. If Arizona sets up a state church, it should be treated "like a colony" too.

And I love it when people benignly ignore the trampling of the Constitution when it serves their political agenda.

[Unvanguard]

5. Then go to the Supreme Court and challenge DC's gun control laws.

Don't give Congress (hardly the paragon of respect for constitutional principles) even more latitude to mess with DC's business.

[TPaine7]

19. "Don't give Congress... even more latitude to mess with DC's business."

That would be difficult indeed:

Article. I.

Section. 8.

The Congress shall have Power...

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, ...

http://www.archives.gov/exhibits/charters/constitution_transcript.html

Congress has total legislative authority over the District. Any powers DC exercises are at the sufferance of Congress. That makes sense; DC is the national seat of government and Congress is the national legislature.

[Unvanguard]

20. Constitutional text is not the only thing that matters.

There are also political norms, and basic principles of democracy and self-determination. The political norm that DC residents are entitled to the same democratic rights as every other population in every other jurisdiction in the US ought to be strengthened, not weakened.

[TPaine7]

22. The Constitution sets our political and democratic norms under the law.

It is the reason that people from small states have much more representation than people from more populous states. The House represents us by population; the Senate represents us by States.

To change that, you need an amendment to the Constitution, not a lot of talk about norms and principles.

Your point would be much stronger if the Constitution had been written to harm DC residents. Do you have any evidence that it was?

If, on the other hand, it was written to set aside a territory free from state dominance as the Capitol of the United States, your point seems very strained. It would make much more sense to complain about the millions in populous states being underrepresented in the Senate than about a tiny District set aside as the Capitol.

In any event, the predilection of a territory to deny that the BIll of Rights should override its political rules--along with many other things that have happened in DC--don't help to make the case that it deserves to have the Constitution changed so it can freely impose its unconstitutional will on residents and visitors.

[Unvanguard]

27. The Constitution does not express the sum total of political justice.

This argument is getting kind of silly. What on Earth does the Senate have to do with anything? It is a manifest political injustice, true, but, unlike Congressional intervention in the District of Columbia, it's not something we have discretion over. Congress can choose to leave DC alone; it has made some strides toward doing so in recent decades. Congress can't alter the representation of states in the Senate. (Technically, even an amendment can't do that, though there are questions over whether an amendment could also amend the provision that says an amendment can't do that.) I'm not saying we have to amend the Constitution (though we should); I'm saying that we should avoid making political arguments that rely on treating DC like a colony, like saying that Congress should exercise its plenary power over DC to deprive it of its democratic right to determine its own gun control policy. Congress wouldn't do that to any state. Nor could it.

Your narrow focus on gun issues ignores that DC has in many other respects expanded the liberties of its residents, often against Congressional opposition. DC has same-sex marriage, and it would have had them several years before it did were it not for the threat of Republicans blocking it; DC had domestic partnerships before it had same-sex marriage (and still has them, actually), the implementation of which were blocked for about a decade by Congress; DC granted funding to low-income women who needed abortions, and was blocked from doing so by Congress in the recent budget debate; Congress is currently trying to mess with its needle exchange and medical-marijuana programs. I know this is the Gun forum, and I understand that you object to DC's gun control laws, but you should be aware that the implications of your attitude are not narrowly confined to that issue. If you don't like DC's gun control laws, there are available means of challenging them that don't negate the rights of DC residents to determine their own laws.

[TPaine7]

30. I reject your premises on two counts.

I'm saying that we should avoid making political arguments that rely on treating DC like a colony, like saying that Congress should exercise its plenary power over DC to deprive it of its democratic right to determine its own gun control policy.

1) If Vermont set up a state church or Texas made it illegal to criticize the governor or Maine forbad interracial marriages Congress would have a duty to "treat it like a colony." I agree that they MIGHT lack the political will, but Congress lacks the will to perform many of its duties. What's new about that?

2) Neither DC nor Vermont, Texas or Maine have any "democratic right" to do any of those things listed above. They don't get to set their own marriage policy--at least not in a way that violates the Constitution. Labelling unconstitutional exercises of power a "democratic right" matters not at all.

The bottom line is that Congress has power and the constitutional duty to stop any political entity--state or territory or district--from unconstitutionally exercising power. The fact that its power is absolute--if constitutionally exercised, of course--within the District doesn't mean that Congress must regulate beer and marriage and speed limits in the District as soon as it stops an unconstitutional abuse. Congress can easily limit itself to stripping the District of the power to regulate guns. Just because its power is "plenary" does not mean that the exercise of that power must extend to its constitutional limits.

[Unvanguard]

32. That's a Fourteenth Amendment Sec. 5 argument. And I am okay with it.

Because it does not interfere with the norm of DC home rule as long as it is a broad national rule: "No political entity may enact regulations of this sort." But that isn't what you proposed. Nor is it a very likely political means, not least because the Supreme Court has made it difficult for Congress to exercise its enforcement powers broadly.

[TPaine7]

34. Not with respect to DC it isn't my argument.

DC isn't a state.

I agree with you that DC shouldn't be singled out, however. Chicago should also be stripped of power to regulate guns, followed by New York, New Jersey, LA, Hawaii, and any other intransigent locale. I've said as much before: http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=118x434846

If Congress has to use different branches of its power on Territories and states, it matters not. And if it has plenary power over a territory, that does not mean that it has to exercise it in totality.

[Unvanguard]

36. Actually, it pretty much does mean that.

Because, while there is nothing logically impossible about a norm like "Congress may intervene in DC affairs when TPaine7 thinks it makes sense, and not when TPaine7 doesn't think it makes sense", that's a politically impossible norm because there's nothing about it that makes it attractive to anyone but you. Norms have to be broad because otherwise they don't provide any reason for all parties to respect them.

Though actually that point is largely immaterial to DC, because the same political party that seeks to limit DC's right to control its own gun control policy also seeks to limit DC's right to treat same-sex couples equally, to protect the reproductive choice of poor women, to protect the health of drug users, and to permit medical marijuana. DC, as an extremely Democratic city, makes policy choices across the board that appeal to many Congressional Democrats and repulse most Congressional Republicans, so it makes sense that debates about home rule occur on partisan lines, and that there is no substantial constituency for the sort of partial home rule you propose here.

[TPaine7]

38. The Bill of Rights is a logical and natural boundary.

Gay marriage violates no one's rights.

[SteveM]

42. D.C. has a "right" to determine their own laws -- if they are constitutional.

"If you don't like DC's gun control laws, there are available means of challenging them that don't negate the rights of DC residents to determine their own laws."

I agree that D.C. shouldn't be treated like a colony. But it shouldn't be a fiefdom outside of the provisions of the Constitution. If it can pass laws supporting "gun control," it can pass laws supporting "restricted freedom of movement," "partial free speech," and "some religious freedom for some religions."

I don't think you would support those kinds of laws.

[TheWraith]

23. Already done, and won. District of Columbia versus Heller.

The District's ban has been ruled unconstitutional. Now they're simply trying to get around that by not "banning," just putting so many restrictions on your exercise of a right that you might as well not have it. It's the same basic strategy that Republicans have tried to execute on abortion.

[Unvanguard]

25. I'm not sure what your point is.

Either challenge those restrictions in the courts, if you think they are unconstitutional, or live with them, as the enactments of the legitimately-elected representatives of the people of DC, however much you might abhor them.

[TheWraith]

26. My point is that DC lawmakers are attempting to game the system.

They've been told they can't "ban" firearms, so they intend to make it impossible to own one legally. And when they lose that lawsuit, they'll simply make it unaffordable. And when they lose THAT one...

All the while, what they're doing is depriving people of the rights to which they're entitled, and spending MILLIONS in taxpayer money to defend laws which are clearly designed to curtail existing rights. If Cheyanne, Wyoming decided to spend $2 million dollars to defend their ban on practicing abortion within the city limits, and then millions more on trying to regulate it out of existence, would you think that was okay? Is indefinite detention without charges okay because you call them "detainees" instead of prisoners? Same basic principle: trying to get away with something that's illegal through a smokescreen of pretense.

[Unvanguard]

28. I think the people of Wyoming have the right to govern themselves.

I don't think bans on abortion are okay. But I don't think giving Congress sovereign power over Cheyenne, Wyoming is the right solution either, at least not if every other state retains its rights. I would be sympathetic to a Freedom of Choice Act passed by Congress under Sec. 5 of the Fourteenth Amendment, banning the various workaround measures used by state governments to restrict reproductive choice, though I don't think such a law has a hope of passing anytime soon, and I don't think it would be very successful in the courts.

Likewise, though I don't agree with Heller or McDonald, I would have no procedural objection to Congress invoking its Sec. 5 powers to enact a broad national ban on gun regulations it reasonably thinks function to deprive people of what it takes to be their Second Amendment rights (though such a law might also encounter substantial difficulties in the federal courts). My objection is to attitudes accepting Congress's view of DC as a convenient opportunity to score ideological points.

[TheWraith]

29. And I think that the constitution is not a cafeteria menu. You don't get to pick and choose.

I don't think that Alabama should be allowed to segregate schools simply because they found a legally clever way to do it. I don't think that Kansas should have a state religion. And I don't think DC should be able to ban it's citizens from defending themselves.

Like it or not, DC isn't a state, which leaves it in a somewhat unique position. I would be as happy as anybody to see it either made into a state or better yet just annexed to Virginia, but that's not the case right now.

[TPaine7]

31. What possible basis could Federal Courts have to resist Congress exercising its

explicitly enumerated powers under the Fourteenth Amendment?

"Congress shall have the power to do X" means that "Congress shall not have the power to do X?"

I would think that the SCOTUS would have great deference towards Congress exercising its explicitly enumerated power, especially in light of the intentions of the Framers of the Fourteenth Amendment. And very rightly so.

[Unvanguard]

33. The difficulty is over the meaning of "enforce."

How much discretion does that verb give Congress to (a) independently interpret the requirements of the Fourteenth Amendment (e.g., to find that the Second Amendment bars more than the Supreme Court thinks it does) and to (b) enact prophylactic rules to prevent violations of the Fourteenth Amendment? The Supreme Court in recent years has said "Not very much."

[TPaine7]

35. Ah. A more cynical person might say that the real "principle" is protecting their turf as

the interpreters of law.

That's quite believable.

[Unvanguard]

37. You are not the first to make that point. There is probably something to it. n/t

[tortoise1956]

40. I have to agree with some of your argument...

DC should not be treated as a political experiment, no matter what some politicians think. However, Congress DOES have power to regulate the territory as it sees fit, and that includes changing the laws (within constitutional limits, of course).

That said, DC hs already been through the courts (Heller), and they lost. In spite of that, they are STILL attempting to contravene the Supreme Court and place unconstitutional limitations on residents' second amendment rights. They need to be slapped down.

All of this is due to the fact that the Supremes pussyfooted around in Heller. They made a decision that was very narrow, and deliberately stayed away from defining what is and isn't a constitutional second amendment limitation. I expect to see more cases like McDonald and the one in California (can't remember the name) as the boundaries are slowly formed by the courts.

[Name removed]

8. Deleted message

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[friendly_iconoclast]

14. I note that the *entire* court agreed that the 2A protected an individual right...

...even the dissenters (the dissent was over what regulation is permissable).


Perhaps you should have had a word or two with the counsel for DC, as their petition held that the Second Amendment

did not apply in DC as it is not a state:

http://www.nraila.org/heller/primaries/07-290_PetitionerFenty.pdf

(page 35 in the original, page 54 of the *.pdf)

[TPaine7]

18. Do you have any objective, historically and legally valid reason to conclude that the decision was

flawed on the merits? Or do you like to call names and rage impotently against truth that you neither like nor understand?

Follow up: If I could prove to you that Mao, Stalin, Hitler, Bush, Manson and the "corrupt Repuke majority on the SCOTUS" all agreed that 2 + 2 = 4, would you lose your ability to balance your checkbook?

Here's a little piece of my "fantasy."

1) The very first time the full US Supreme Court mentioned the Second Amendment it called it a right "of person," it said that citizens enjoyed the right to travel throughout the United States and to carry arms wherever they went and it listed the RKBA along with other rights like freedom of speech.
2) The guys who wrote the Fourteenth Amendment did so with the intent of compelling the states and their political subdivisions (which get their power from the state) to respect the Second Amendment. In fact, one of the clearest, most explicit statements of that fact was made as the Amendment was being introduced on the floor of the Senate.
3) The Supreme Court has aluded to the fact that the Second Amendment is a personal right dozens of times before the "corrupt Repuke majority" ever sat on the SCOTUS.
4) If Miller is read so as to harmonize it with the mass of the SCOTUS precedent before it, it leads straight to the conclusion that citizens can keep and bear handguns.
5) At the time of the writing of the Fourteenth Amendment--which was written in part to ensure the individual citizen's RKBA against state and local infringement--there were semi-automatic weapons in the hands of ordinary US citizens.

Perhaps you would be so kind as to point out where this "fantasy" departs from reailty.

If you wish to actually inform yourself about the subject you feel so strongly about, I suggest Yale Professor Akhil Reed Amar's The Bill of Rights: Creation and Reconstruction. ( http://www.barnesandnoble.com/w/bill-of-rights-professor-akhil-reed-amar/1103727644?ean=9780300082777&itm=9&usri=akhil%2bthe%2bbill%2bof%2brights , http://www.amazon.com/Bill-Rights-Creation-Reconstruction/dp/0300082770/ref=sr_1_1?ie=UTF8&qid=1310604613&sr=8-1 )

Please note that Professor Amar isn't a professor of Geology funded by the NRA. Nevertheless, his argument that the Second Amendment was intended to protect an individual right to keep and carry arms--and that that intention was re-iterated and amplified by the Fourteenth Amendment--is devastating. And I say that on the basis of citations of original sources much more than his argumentation, strong as that is.

Or you could keep using words like "fantasy" and "stupid" in a series of intellectually vacuous tantrums. Your choice.

[TheWraith]

3. That's what we traditionally do to parts of the country which can't obey the constitution.

See "America, Confederate States of". See "Little Rock Nine."

[Unvanguard]

7. The South actually seceded.

And Congress never claimed plenary power over Alabama during the battles over the Little Rock Nine.

[TheWraith]

24. And nobody has sent General Sherman into DC.

But we did have to use US Army troops, the famous 101st Airborne Division, in Little Rock.

Parts of the US don't get to pick and choose items out of the constitution to follow.

[friendly_iconoclast]

4. DC brought that on themselves, at least as far as the firearms issue goes.

One of the (unsuccessful) arguments they made in Heller was that the Second Amendment didn't apply in DC, as it was not

a state.


Perhaps they could ask the founder/head honcho of the Violence Policy Center if he might actually put his FFL to use

and start actually selling guns. It would be a nice gesture on his part, considering how much money he has cost the District

in legal fees...

[Unvanguard]

6. They made no such argument in Heller.

They couldn't possibly have, because, as of Heller, the Second Amendment had never been incorporated against the states and applied only to the federal government. That's why Heller was brought in the first place: it was a step-by-step approach to getting an individual-rights interpretation of the Second Amendment to apply to the states.

[friendly_iconoclast]

10. They most certainly did. Page 35, here (*.pdf file):

http://www.nraila.org/heller/primaries/07-290_PetitionerFenty.pdf

[X_Digger]

13. Page 35 in the document's numbering, page 54 in the pdf (to clarify.) n/t

[Unvanguard]

15. That's the exact OPPOSITE of the argument you claimed they made.

You said, "One of the (unsuccessful) arguments they made in Heller was that the Second Amendment didn't apply in DC, as it was not a state."

The brief argues instead that the Second Amendment didn't apply to DC's government because DC is analogous to a state, and the Second Amendment only binds the federal government. That's perfectly consistent with my post, which correctly characterized the state of the law at the time and the tactics of those challenging the DC law. It is, however, the exact opposite of your claim.

See the very first paragraph in the section you point to:

The judgment must be reversed for the independent reason that the Second Amendment was intended as a federalism protection to prevent Congress, using its powers under the Militia Clauses, from disarming state militias. The Amendment thus “is a limitation only upon the power of Congress and the National government” and does not constrain states. Presser v. Illinois, 116 U.S. 252, 265 (1886). Laws limited to the District similarly raise no federalism-type concerns, whether passed by Congress or the Council, and so do not implicate the Second Amendment.

(my emphasis)

[Name removed]

9. Deleted message

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[friendly_iconoclast]

11. Are you claiming that DC did not argue that the 2A did not apply there?

Or are you claiming it?

Because DC mayor Fenty's written petition most certainly did:

http://www.nraila.org/heller/primaries/07-290_PetitionerFenty.pdf



Frankly, I find Democrats discarding bits and pieces of the Constitution disgusting- but that's just me, apparently..

[ProgressiveProfessor]

17. It should be treated as the founders intended

The repressive laws it has today suit no one well.

[Unvanguard]

21. No, it shouldn't. The Founders were not perfect and they did not anticipate everything.

DC's laws are DC's business, except insofar as they trespass the Constitution, in which case they are the Supreme Court's business. (I would see some more room for latitude if Congress actually decided to use its Sec. 5 enforcement powers, and did it not only to DC but also to states whose gun control policies it thought trespassed the Second Amendment, but that has not ordinarily been how Congress has proceeded with respect to DC.)

[PavePusher]

41. Then the correct process is to Amend the Constitution.

Not just say that part of it is wrong/obsolete and ignore it.

[SteveM]

43. If D.C. were considered de facto a state, the job is easier...

for the Supreme Court: No state (including D.C.) can abridge the privileges and immunities of a citizen of the United States (14th Amend). D.C. law's would be slapped down in short order, just as Chicago's laws were slapped down.

It cannot be denied that in both D.C. and Chicago the laws were designed to disarm the individual, a clear violation of both the Second and the Fourteenth.

[TPaine7]

45. A caveat

The Fourteenth Amendment doesn't apply to federal territories--at least as far as the RKBA is concerned. That is why the District was chosen for the first case and the Fourteenth wasn't raised until Chicago.

[SteveM]

46. I agree. My response was a hypothetical, since the status of D.C....

with regards the 14th was being debated. Chicago was definitely 14th "territory."

I can't believe that D.C. wants to set up a city-run gun shop. They clearly want some regulatory scheme to register all gun-owners, and/or somehow cop the "we reserve the right to refuse service to anyone" right that independent businesses exercise. I think it ironic that they are scrambling to find the one (1) gun shop owner a place to set up, even as they denied him that right by preverting the Commerce Clause!

[ileus]

12. Why not get into the business or selling fast food also.

[ileus]

16. Why would the PTB want to deny their citizens/voters the right to a basic civil right?

[GreenStormCloud]

39. Instead of getting an FFL the city should let private business do it. N/T

[SteveM]

44. Beware your own heat-seeking missle...

Long-time posters here will recall attempts by gun-controllers/banners to pass laws to hold various entities financially responsible for deaths resulting from use of firearms. Some suggested they may be manufactures; some the gun shops; some individuals themselves. Looks like some of their own hoodoo is coming back to haunt them:

"D.C. Council Chairman Kwame R. Brown (D) and Council member Jack Evans (D-Ward 2) said they worried the District would be liable for gun deaths if the legislation was approved.

'I don’t think a police officer should have to go talk to a mother to say, ‘your son has been shot with a gun that the city helped them purchase’, Brown said."