D.C. Gun Control Inconsistency

The District of Columbia is currently defending Washington, D.C.’s gun ban before the Supreme Court in District of Columbia v. Heller. It argues that the Second Amendment merely protects state and local governments’ collective right to arm a militia against federal interference, not an individual right to bear arms.

But it turns out that the District of Columbia’s own “constitution” contains a provision in its Bill of Rights identical to the Second Amendment in its language, providing that “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.”

That language in the D.C. Constitution would be meaningless unless it secures an individual right to bear arms, contrary to the basic axiom of constitutional interpretation that no word or clause in a constitution should be treated as meaningless (see Holmes v. Tennison (1840)). If the gun-rights language only recognized the D.C. government’s collective right to arm a militia, it would serve no purpose, since (a) a local constitution can’t protect a local government against the federal government, which isn’t bound by local constitutions; and (b) the D.C. government needs no protection against itself. Moreover, the purpose of a Bill of Rights is to restrain, not expand, the power of the government to which it applies, so a Bill of Rights in the D.C. Constitution should not be read as securing “collective rights” for the District itself.

As David Kopel observes,

It is sometimes claimed (such as by DC lawyers in the [gun-rights] 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 [it] 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 . . . 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.

I have previously explained why the federal appeals court decision striking down the District’s gun ban (Parker v. District of Columbia) was correctly decided, and why it did not constitute judicial activism.