June 26, 2008
The Great Gun Decision: Dissent
Posted by Stephan Kinsella at June 26, 2008 04:08 PM
Huebert (and Butler), I think the decision is much more of a mixed bag. I agree that it is good that the Court finally explicitly recognized what the Second Amendment has always meant. The four dissenting liberal "justice" are craven liars. They are not trying to be judges; it is obvious to anyone with a brain that the Second Amendment was meant to protect an individual right to bear arms from infringement by the federal government.
And that is the problem with the decision. First, although the Second Amendment has not yet been enforced against the states via the dishonest incorporation doctrine into the squalid Fourteenth Amendment, as Huebert notes, that may be next.
Second, as Kevin Gutzman notes, the Bill of Rights provides limits on the power of the federal government--not states, and not DC. So, as with the majority in the Kelo case, the dissent would have had the right result for the wrong reasons. In Heller, the majority is correct in how they construe the meaning of the Second Amendment; the liberals are blatantly, dishonestly wrong. But both sides incorrectly believe that the Bill of Rights applies to DC.
Of course, pointing these things out is likely to cause some quasi-libertarians to dissent or pitch a hissy fit. But what is despicable is that we think of the feds, and nine of their employees, as having the authority to determine what our rights are.
For those who are shocked by the idea that the Bill of Rights does not apply to DC--well, most people are shocked that the Bill of Rights was never meant to, and until judicial "innovation" in the 1920s, did not, apply to the states--consider the following:
In 1789, the Constitution was ratified. It did not at that time contain a Bill of Rights. This was not added until 1791, two years later. No one at the time thought that in 1790 it would have been constitutional for the feds to censor speech, or ban private ownership of muskets. This is because the federal government was one of limited and enumerated powers, and there was simply no power granted to the federal government to legislate in these matters. The Bill of Rights was merely added as an exclamation point; it was supposed to merely be for extra caution, but really just redundant with the limited powers scheme of the Constitution. It was added at the insistence of the Anti-Federalists who just did not trust the federal government to not exceed its delegated powers (gee, I wonder why?). (See my Supreme Confusion; In Defense of Evidence; and Taking the Ninth Amendment Seriously; also see McAffee, A Critical Guide to the Ninth Amendment (p. 66), Federalism and the Protection of Rights: The Modern Ninth Amendment's Spreading Confusion and The Bill of Rights, Social Contract Theory, and the Rights "Retained" by the People.)
But the point is the real point of the Bill of Rights is just an additional limitation on federal power. The federales have no constitutional authority to infringe on free speech rights because that power is not granted--not because the First Amendment mentions a right to free speech. The Bill of Rights was meant to be redundant and irrelevant. The primary mechanism to limit federal powers was not a listing of rights, nor even the Ninth Amendment; it was the very scheme of limited, enumerated, delegated powers that was meant to keep the feds from getting out of hand. Because of this scheme, the federal government does not have what is sometimes referred to as "plenary" or general legislative power, as most states (and as the individual States of the US do) do. In fact, it is because States do have plenary police or legislative power that is is more important that their powers are explicitly limited by a bill of rights.
(Plenary police power is simply the general power to legislate. See, e.g., the 1920 US Supreme Court case Rhode Island v. Palmer (referring to states' "plenary police power") and US v. Lopez (quoting the 1819 case McCulloch v. Maryland: "The [federal] government is acknowledged by all to be one of enumerated powers. The principle, that it can exercise only the powers granted to it . . . is now universally admitted.", and quoting Gibbons v. Ogden for the proposition that "The enumeration presupposes something not enumerated"; and further stating: "The Constitution mandates this uncertainty by withholding from Congress a plenary police power that would authorize enactment of every type of legislation).)
Now, it is true that Congress has today assumed very broad, almost plenary, legislative power by interpreting its power to "regulate commerce" very broadly. And for this reason the Bill of Rights has assumed a greater role than it would have, had the feds not exceeded its limited delegation of powers.
But back to my point. Under the original constitutional scheme, not only did Congress have no power to infringe various rights, it also didn't have the power to stop many types of rights violations, such as murder. Thus, a federal law outlawing murder would have been as unconstitutional as one outlawing drugs. This is one of the reasons it makes no sense to apply the Ninth Amendment to states but makes sense to apply it to the feds: the open-ended nature of the "rights" of the Ninth Amendment corresponds to the limited powers scheme of the federal government. Since the feds only have limited powers, this means there is an infinite body of "rights" that serve as limits on its power: that is, everything the feds are not authorized to do, is like a "right" or limit on what it can do. But since states do have plenary legislative power, a concrete listing of rights--limitations on this broad array of powers--makes sense, but not an open-ended listing of rights as in the Ninth Amendment (because this an open-ended grant of power and an open-ended list of limitations on power conflict with each other; it does not make sense).
I think all this buttresses Gutzman's argument that DC has to be treated, for purposes of the Bill of Rights, like a "quasi-state". Why? Because DC has general legislative power. Unlike the federal government, DC can outlaw murder and rape and theft. But how can this be? After all, the federal government itself has no authority to outlaw murder. Yet DC does. So just as the Bill of Rights was never intended to apply to the states; and just as it makes no sense to apply the Ninth Amendment to the States, which have plenary legislative power, but only to a state that has limited power (like the feds)--so it makes no sense to apply the Bill of Rights to DC.
Moreover, the precautionary nature of the Bill of Rights, their nature as just reinforcing already-existing limits on federal power, and the fact that in 1790, before the Bill of Rights, just as in 1792, after it, the feds would have equally been unable to enact a law banning murder or cocaine, shows that the result of the application of the Constitution should be the same whether the Bill of Rights is present or not.
Let's take an example. Imagine (1) a federal statute banning murder, (2) a federal statute banning firearms, (3) a New York law banning murder, and (4) a New York law banning firearms.
What would be the result in 1790, before the Bill of Rights? Well, both federal laws (1) and (2) would be unconstitutional, since the feds have no enumerated, delegated power to outlaw murder, or to outlaw firearms. But state laws (3) and (4) would not violate the federal constitution, since for (3), states have plenary legislative power and were supposed to be the ones protecting against crime; and for (4), the feds had no delegated power authorizing them to interfere with state law.
What about in 1792, after the Bill of Rights? Again, the same results, since the Second Amendment only limited what Congress could do, not States. So we see that a proper interpretation of the limited powers nature of the Constitution means that the Bill of Rights is superfluous when analyzing the actions of either the federal or state governments.
So let's pretend the Bill of Rights had never been ratified, and take a look at the DC gun ban issue. The results should be the same as if there were a Bill of Rights--to hold otherwise is to maintain that the purpose of the Bill of Rights was not to limit the States (since it did not limit the States originally) nor even the feds (since it was only redundant)--but to limit DC internal policy!--clearly an absurd position. So: under what grounds could the Court strike down a DC gun ban? It could not say it violated the Second, or Ninth, amendment, since those limits on federal power are not in the Constitution (in this hypo). So one would have to say that since there is no power granted in the Constitution to ban guns, DC, as a creature of the federal government, cannot ban guns. But by this argument, DC cannot outlaw murder either, just as the feds cannot. However, DC may outlaw murder, since it has broader legislative power than the feds have. But if it does, it also has the legislative power to ban guns, just as states do (from the perspective of the federal Constitution).
In other words, the "limited powers scheme" that is meant to restrain the federal government, and make it unique in the world in being a state that does not have plenary power, clearly does not, and cannot, apply to a government that does have plenary legislative power. And since the Bill of Rights is only a reiteration of this limitation on federal power, it, too, does not apply to DC, just as it does not apply to the states. Ergo, we must conclude that DC is, in fact, like a state--a quasi- or pseudo-state, as Gutzman called it. The only argument I can think of that makes sense, would be to argue that DC itself is unconstitutional; but this seems belied by Art. I, Sec. 8, of the Constitution, which does authorize the formation of the District of Columbia. Of course the District must have and was contemplated to have plenary legislative power, since there would be no State there to outlaw crimes like murder etc., and since Congress has no power to outlaw such crimes.
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