17 April 2008

‘Yes’ or ‘No’?

What is it with politicians and closed-ended questions? Last night Senator Obama was asked if the D.C. gun ban (D.C. Code sections 7-2502.02 , 22-4504(a), and 7-2507.02) is constitutional. It was a simple thing: it is; or it is not. After Obama’s two minute response, Charles Gibson replied that he didn’t think he got his question answered.

Senator Clinton was no better. She was asked an even simpler question: Do you support the D.C. gun ban? It’s a question which doesn’t call for a legal opinion, but for a personal opinion. Do you support the gun ban or not? She also gave a several minutes long response, which included the fact that she didn’t have all the facts, and supported gun legislation within the bounds of constitutionality, and so forth.

There is room for nuanced answers here. For example, to the question, “Is the D.C. gun ban constitutional?” one could offer principled arguments for and against. An argument for the constitutionality of the ban would take account of the text of the second amendment, noting that the amendment seeks to curb the power and authority of the federal government, leaving such matters in state hands. Since D.C. is not a state but is under direct control of the federal government, the federal government does have power to limit weapons ownership in D.C., which authority (one could argue) has been delegated to the D.C. municipal government. In short, and as Laurence Tribe has argued, the provision is not applicable in the nation’s capital. The nation’s capital is effectively federal territory and thus not subject to a provision which limits the power of the federal government over the states. When looked at that way (which I think is the correct way to look at it) I think that the D.C. gun ban is constitutional.

Sadly, we can no longer look at it that way. There is a school of thought which has it that the Fourteenth Amendment wraps up the Bill of Rights and makes them applicable against the states. There are also those who argue for D.C. statehood. Those people should put their statehood money where their statehood mouths are, apply that Bill of Rights they enjoy applying against the states and acknowledge that since a state can no longer make laws respecting an establishment of religion, they darn well can’t infringe upon the right of the people to keep and bear arms. Looked at that way, the D.C. gun ban should be seen as unconstitutional. But since D.C. is not a state, that really is not the correct way to look at it.

So, for the record, I do not support the D.C. gun ban because I think it is unwise. But I think the ban is constitutional because the Constitution curbs the federal power with respect to weapons, and D.C. is federal territory.

See how easy that was?

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James Frank Solís
Former soldier (USA). Graduate-level educated. Married 26 years. Texas ex-patriate. Ruling elder in the Presbyterian Church in America.
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