Selective Support for Democracy

In response to a federal appeals court’s decision Friday striking down the District of Columbia’s gun ban, the head of the Brady Center to Prevent Gun Violence, which filed court briefs in support of the ban, denounced the decision.

He argued that because the elected D.C. Council enacted the gun ban, the court’s decision to strike it down “negated the democratically-expressed will of the people of the District of Columbia.”

That’s a curious argument for the Brady Center to make, since it has often sought to circumvent both the will of democratically-elected legislatures and gun-rights measures enacted by voters in referenda.

For example, it has fought to overturn laws, such as the federal Protection of Lawful Commerce in Arms Act (PLCAA) passed by Congress, that protect gun manufacturers from lawsuits over gun crimes committed by criminals without their knowledge. These laws are backed not only by gun-rights advocates, but also by business and tort reform advocates.

In October, an Indiana state judge, egged on by the Brady Center, declared the PLCAA unconstitutional in City of Gary v. Smith & Wesson under the cockamamie theory that the constitution is violated when a legislature passes a law that affects pending cases. Under that strange logic, the civil-rights laws would be unconstitutional, since their passage had the effect of abating hundreds of prosecutions against civil-rights protesters for trespassing and other offenses.

The Indiana lawsuit backed by the Brady Center was based on a judge’s idiosyncratic interpretation of the doctrine of “separation of powers” (which is, incidentally, not mentioned in the Constitution).

By contrast, the federal appeals court ruling that the Brady Center criticizes which struck down the D.C. gun ban in Parker v. District of Columbia was based on the plain text of the Second Amendment, which speaks of the “right to keep and bear arms.”

The Founding Fathers did believe in the concept of separation of powers, even if they didn’t write it expressly into the Constitution; the concept is implied from the fact that they gave the Congress the exclusive power to pass laws (in Article I of the Constitution) while giving judges the power to try individual “cases and controversies” (in Article III).

But they hardly believed, as the Brady Center does, that it violates the separation of powers for a legislature to alter the law in a way that affects pending cases. Legislatures do this all the time, often to override mistaken or outmoded judicial interpretations of their laws.

While the Brady Center’s definition of separation of powers is absurdly broad, its interpretation of the Second Amendment’s express right to keep and bear arms is too narrow. The Brady Center argues that the “right” to keep and bear arms is collective in nature and protects only a state’s right to arm its national guard units.

But under court rulings such as the Supreme Court’s Perpich decision, the federal government can federalize a state national guard unit even over a state’s objections. And since Hurricane Katrina, states’ influence over their guard units has diminished even further.

The Brady Center’s interpretation thus renders the Second Amendment virtually meaningless, and has the effect of making many words in the Second Amendment mere surplusage. That violates settled principles of Constitutional interpretation, under which every clause and word in the Constitution is deemed to have independent force and effect. See Holmes v. Tennison (1840) and Marbury v. Madison (1803).