Alphecca

Gays and Guns

Liberal Democrats such as Andrew Sullivan are all atwitter over the House vote to allow DC residents the (Bill of) right to own a gun. He says:

You can debate the merits of the D.C. handgun bill. What you cannot debate is the obscene way in which the residents of D.C. have absolutely no say in how their city is governed; and the way in which the Republican party uses the District's "citizens" as pawns in their national electoral politics...
...
...Excuse me, but why should I give a rat's ass what some Indiana congressman thinks? Thank God this won't pass the Senate. But it's a disgusting assault on the basic principles of democracy.

I agree that DC residents have no say about the laws passed that govern them. I also think (and liberal Democrat Sullivan doesn't) that those residents should be afforded all the rights granted in our nation's Bill of Rights. In this case, I'm referring to the Second Amendment. This is the right to bear arms for personal defense. Okay -- the Second Amendment doesn't explicitly state that, but it's implication, as well as the collateral writings of the period by the people who wrote the Second Amendment clearly imply that a person has the right to own a firearm for personal protection.

The city council of DC decided in 1977 that residents were NOT entitled to that right. They banned all handgun ownership. Now, maybe I'm going off the deep end here (it won't be the first time) but when a city council decides to void constitutional rights, some remedy needs to be taken. Andrew declares that the recent vote in the House is an assault on home rule.

Let's just pretend now that the city council of DC had decided years ago that black people shouldn't be allowed to vote. Yes, the 15th Amendment guarantees the right of black people to vote (further enforced by the 24th Amendment) but the DC council has decided that they shouldn't be allowed to. Home Rule, Andrew. Sounds ridiculous, huh? Yet that is what the District of Columbia did by banning ownership of all handguns (and most other long guns, too) which clearly violates the Second Amendment.

So if DC bans blacks from voting, should congressmen from other states be entitled (indeed, obligated) to restore that right to DC residents? I think they should. Sullivan doesn't. Of course, we're really talking about the right to defend oneself from criminals and we're talking about the Second Amendment. Sullivan feels that the average citizen shouldn't be allowed that right and that the DC council's ordinances should be inviolate. I don't agree.

This brings up a larger point brought up by Glenn Reynolds at InstaPundit about explicit versus unenumerated rights in regards both guns and gay marriage. You should read his post of course but here's a quote:

But here's a question. We're often told that Congressional efforts to repeal the D.C. gun ban are an affront to D.C. citizens' right to self-rule. But those efforts are in support of an explicit Constitutional right to keep and bear arms -- and since D.C. isn't a state, there's none of the usual argument about whether the Second Amendment should apply to its efforts or not.

So would a Congressional effort to overturn state bans on gay marriage in support of an unenumerated right to marry constitute a similar affront to local autonomy? I'm just, you know, asking. . . .

The short answer is (many of you will hate me for this) YES. It is very easy, with the backing of the Bill of Rights, to make an argument that a local district or state is in violation of federal law, or at least the Bill of Rights. But as our courts have shown, common sense is not enumerated in the Constitution or the Bill of Rights and judges do not have to invoke it to support or deny rights based on current beliefs or mores.

This is why there was such an outcry about the Supreme Court decision overturning the sodomy statuates in Texas. I'm glad it happened but I can understand why many were disturbed by it. The natural defense is that the law there violated the right to privacy. I agree with that. The natural opposition to the ruling was that it violated home rule. I almost agree with that.

This is getting into Constitutional Law, and I am way over my head here so I'll leave it to others to fight it out.

The argument of "activist judges" is valid but at the same time, sometimes that is all a minority has to fall back on. One reason our founders decided that we needed an Electoral College was to prevent rule by mob, as it were. Most minorities would have NO rights even today if left to popular vote. I'm glad that the courts have reasoned that "all men are created equal" and I suspect that most women are glad that the 19th Amendment exists to give THEM the right to vote.

In the end, our democracy is based on seperation of powers -- the Congress, President, and Supreme Court. It's a precarious balance subject to criticism but has served us well for over two centuries.

Let me ask this: Liberals decry the Supreme Court for supposedly deciding the election of 2000. Let's take one of their most dear causes. Should the right to abortion be decided by popular vote? Every poll ever taken suggests that most (the majority) of Americans are against abortion.

Popular vote would change the way we live in dramatic ways. Sometimes we (or they) need the Bill of Rights to ensure that the minority isn't legislated out of existence. Democracy isn't pretty, and our balance of powers as enumerated by the Constitution isn't necessarily perfect, but it has worked well for two plus centuries and I see no reason to change it.

Posted by Jeff Soyer at October 4, 2004 04:06 PM