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Thoughts on the D.C. Gun Ban Decision
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As expected, today the Supreme Court struck down the District of Criminals' draconian gun control law.
Many gun/freedom advocates, such as myself, are both excited and relieved by the court's ruling, but there's only one problem: it looks like the court's decision was wrong.
The good news to come from this decision is that the Supremes correctly ruled that the Second Amendment protects the individual's right to bear arms -- rather than, say, merely protecting the right to form militias, which almost certainly would be (perversely) regulated by the state in this day and age.
But the bad news is that the court seemingly has once again exercised extrajudicial authority; today's ruling is inherently unconstitutional because the Second Amendment is part of a bill of rights that limits federal authority, not state or local -- D.C. enjoys status as a pseudo-state. In short, as consitutional scholar Kevin Gutzman explained here, the Supreme Court has no authority to strike down valid state laws.
Given the Supremes' history of constitutionally approving federal statutes governing activities over which the U.S. government should have no legal jurisdiction (eg., the regulation of abortion and guns easily comes to mind), we've been somewhat conditioned to believe that the U.S. Constitution applies universally. However, it does not. For example, the First Amendment begins by stating, "Congress shall make no law..." It is a very distinct protection against federal usurpation of the right to free speech, religion, etc.; it does not prevent, say, Wisconsin from establishing criminal laws originating in religious dogma (eg., anti-sodomy laws).
However, comprehension of the federal government's authority vis a vis that states was severely compromised with passage of the Fourteenth Amendment, having been henceforth controversially and extensively interpreted by the Supreme Court to give the feds sweeping power to regulate the states, including the notion that each of the tenets outlined in the Bill of Rights applies to every state. Given that the Constitution itself was penned to guard against an omnipotent central state, I find it almost impossible to believe that the framers would have consented to the idea that the Fourteenth Amendment could be wielded to overturn legitimate state laws.
Libertarians are split on this issue, so if it is correct that the Fourteenth Amendment extends the Bill of Rights to the states, then the Supreme Court got the D.C. gun ban decision right. However, if you, like me, believe the founders would have been aghast to learn that this amendment has been consistenly interpreted to allow for increasing federal authority over the states' rights they so jealously guarded, your only conclusion in this matter is that the highest court in the land should have allowed this law, however distasteful in its own right, to stand.
UPDATE: J.H. Huebert has more on the good -- indeed, great -- aspect of this ruling:
It notes that the Second Amendment does not grant the right to keep and bear arms, or any right at all -- it just stops Congress from infringing a "fundamental right" you already had according to "libertarian political principles."
Mr. Huebert notes further along in his commentary that we can probably expect to see more lawsuits applying the Fourteenth Amendment in the attempt to end gun bans in other cities, though he admits this may be a "dubious theory." More interestingly, he says this "wouldn't trouble me too much," no doubt indicating that if the Constitution is going to be misapplied so often to our detriment, it may as well work to our favor every now and then.
I know Grandma always told me two wrongs don't make a right, but such is life when you're bound by the state's hegemony. If we were truly free, there would be no state to confiscate our guns and our natural right to protect ourselves in the first place, so it certainly seems we're forced to "play the game" if we want even a glimmer of hope in wriggling out of the state's tyrannical stranglehold.
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