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The D.C.-Is-Not-a-State Argument:

The dissent in the D.C. Circuit Second Amendment case relied chiefly on the theory that, because D.C. is not a State, the Second Amendment — which reads "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed" — "does not extend to [D.C.]" She argues that the reasoning of Miller v. United States so commanded:

[Miller held]:

In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

Id. at 178 (emphases added). Then, quoting Article I, § 8 of the Constitution [specifically, the Militia Clauses -EV], the Court succinctly — but unambiguously — set down its understanding of the Second Amendment: “With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee

of the Second Amendment were made. It must be interpreted and applied with that end in view.” Id. Construing its two clauses together so that, as Miller declares, the right of the people to keep and bear arms relates to those Militia whose continued vitality is required to safeguard the individual States, I believe that, under Miller, the District is inescapably excluded from the Second Amendment because it is not a State.

The trouble with this reasoning, it seems to me, is that Miller did not hold that the continued vitality of the Militia "is required to safeguard the individual States." Miller talked about the Second Amendment's being aimed at preserving the Militia, which Miller held "comprised all males physically capable of acting in concert for the common defense" (and who, at the Framing, "were expected to appear bearing arms supplied by themselves"). It said nothing about the Militia being required to safeguard the States. And the Militia as understood by Congress (from 1803 to the present) included the citizenry of D.C. as well.

Nor does the reference of a "a free State" exclude D.C.; as the majority points out, "a free State" likely meant what Madison originally wrote, "a free country" ("State" being a common term for country as well as for an individual state). The prefatory clause thus refers to protection of a free country — and it makes sense that the operative clause speaks of the right of "the people," not of state citizens or even of the militia, because it too refers to the people living in this country, including in D.C. and in the territories (recall that the Northwest Territory was an important part of the 1791 United States).

This does leave an interesting question that neither opinion seemed to discuss: The Militia Clauses of article I, section 8 read:

Congress shall have Power ...

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Does it follow that there may not constitutionally be any Officers or training for any militia in the District of Columbia and the Territories, since while Congress is free to organize, arm, and discipline the Militia everywhere, only the States may appoint officers and train the militia, and no State has jurisdiction in D.C. and the Territories? I doubt it; I would think, as did Congress in 1803, that the Militia — the armed citizenry — can exist and can be officered and trained throughout the breadth of the country. (Perhaps Congress's power to officer and train the D.C. militia comes from the Seat of Government clause and the Territory Clause, which wouldn't be limited by the "reserving to the States" proviso.) And if I'm right, then that's evidence that the citizenry has indeed long been understood as having a right to have arms even in D.C. and the Territories.

rbj:
If the 2nd Amendment is an individual right, then how does a "DC isn't a state" argument work; unless you are willing to throw out other individual rights (such as the 1st, 4th &5th Amendments) too?
3.9.2007 2:06pm
Boyd:
The dissent purports to make the 2nd Amendment address a States' right, thereby excluding the District from its effects, since it's not a State.

But more interesting is the logic she uses to conclude the "States' right" interpretation. She uses part of the Miller decision, which said that both parts of the 2nd Amendment must be considered together, to conclude that the RKBA only applies to militias. The mistake there, I believe, is glossing over the fact that the Miller decision addressed the suitability of a sawed-off shotgun for use in a militia. It didn't address limiting the RKBA to militias.

Pure layman speaking here, but I do think I have a fairly good grasp on logic and argumentation, which is why I find the dissent mostly unpersuasive.
3.9.2007 2:33pm
Carolina:
Based on my very quick reading of the dissent, the basic overall argument is: any individual right that exists is for the purpose of promoting militias to protect the states, and since DC is not a state, the amendment does not apply there.

This strikes me as quite a weak argument for the reasons posted by Prof. Volokh, and others, but maybe I need to read more carefully and/or give it some more thought.
3.9.2007 2:34pm
CJW:
How is it that somebody who has made it through law school could even come up with the notion that the Constitution means something different for residents of the District than for residents of other states or commonwealths? The one thing that should be utterly undeniable about our Constitution is that it does apply equally across the board.

Consider that DC did not exist at the time the Constitution was ratified, but that territories did. Did Constitutional rights apply differently to residents of territories just because they weren't in states? Indeed, Article X of the Bill of Rights clearly implies that only a state government might be able to limit the overall rights of a United States citizen; there is no Constitutional provision for a non-state entity to restrict federal rights.

And how about a grammatical analysis? As I recall, every single other place in the Constitution where there is a reference to the individual states of the Union, they are referred to in the plural: States (usually as 'the several States'). What in the name of all that is grammatical could lead somebody to conclude that one single reference to 'the State' could mean the individual components of the Union, rather than the Union in its entirety?

There are so, so many reasons that I am apalled that somebody could even *make* this argument. Kudos to the two sane members of the court.
3.9.2007 3:06pm
Neil (mail):
Did Constitutional rights apply differently to residents of territories just because they weren't in states?


Yes! Of course they did and still do. The simplest (and most fundamental) example would be voting rights: Citizens of the United States have the right to elect members of Congress, but Citizens of federal districts, territories, and colonies do not.
3.9.2007 3:33pm
Robert Schwartz (mail):
I think her objection is a make weight. The Milita Act (10 U.S.C. § 311(a)) provides:

The militia of the United States consists of all able-bodied males at least 17 years of age and, ... under 45 years of age who are ... citizens of the United States and of female citizens of the United States who are members of the National Guard.


Clearly D.C. residents are members of the militia, even though they may not be citizens of a State.

Further as a grammatical point. When the Founders wanted to refer to the the individual States the referred to the "several States". E.g. "Art. II Section. 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States,"

The reference to "a free State" in Am. II. should mean "any free State," and should not be a limitation on the right recognized in Am. II. See Am. IX (The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.) which discourages limiting constructions.
3.9.2007 3:45pm
Philistine (mail):

Further as a grammatical point. When the Founders wanted to refer to the the individual States the referred to the "several States". E.g. "Art. II Section. 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States,"



To play Devil's advocate—doesn't this (and other portions of the Constitution) support the dissent?

The Constitution contemplates States to have militias (e.g.) "...reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress" and "The President shall be commander in chief...of the militia of the several states, when called into the actual service of the United States."

Did DC have a "militia"? Who was in charge of appointing officers and training?
3.9.2007 4:04pm
Justin (mail):
I think its a more difficult question than EV gives credit. I'm not sure the purpose of the 2nd Amendment really applies to places like Guam and PR. But DC is different, of course. There's more reason to treat it like a state than like a territory. However, I think this more goes not to the question of whether DC should be treated like Puerto Rico, but to whether it is finally time to place DC on equal footing with the rest of the country.
3.9.2007 4:34pm
triticale (mail) (www):
I am disappointed to learn that there is historical evidence that the word State as used in the 2nd refers to a political body. I have preferred to assert that it is synonymous with "condition".
3.9.2007 4:39pm
Mark Field (mail):

Citizens of the United States have the right to elect members of Congress


Even this right depends on the states to some extent(Article I, Sec. 2, cl. 1). The only unqualified right to vote is found in the 17th Amendment. Residents of DC, of course, don't have that right.
3.9.2007 4:58pm
A.S.:
Did DC have a "militia"? Who was in charge of appointing officers and training?

I was thinking about this question also. I note that DC does, in fact, have a National Guard. (Of course I realize that the term militia is braoder that just National Guard.)

The dissent makes much of the fact that states may need militias as protection against the federal government, and that this wouldn't apply to a federal territory like DC. But obviously that's not the only reason for militias - as evidenced by the existence of the DC National Guard. So the question is whether the other reasons for militias (i.e., those reasons to have militias that are the same for both states and federal territories like DC) are sufficient to warrant the 2nd amendment individual right.
3.9.2007 5:01pm
Don Miller (mail) (www):
Does the dissent strike anyone else as an example of what happens when a Judge wants a particular result instead of the conclusion that logic, the law and the Constitution would require?

To me, this is a perfect example of the tortuous process someone goes through to make the result come out they way they want it to, instead of the simpler conclusion that it means what it says.

I believe the dissenting Judge likes gun control laws and will continue to make whatever argument she can to uphold them, no matter how implausible.

The reality, the 2nd amendment probably says and means what pro-gun people have always said. If we don't feel it appropriately reflects modern values and lifestyles, then we should go through the process of amending the Constitution then having the Courts try to redefine it.
3.9.2007 5:25pm
PersonFromPorlock:
Is there any reason why a DC resident couldn't be a member of, say, the Maryland militia? And if he were, wouldn't he bring the Second Amendment home with him?
3.9.2007 5:34pm
Clayton E. Cramer (mail) (www):
Philistine writes:

To play Devil's advocate—doesn't this (and other portions of the Constitution) support the dissent?

The Constitution contemplates States to have militias (e.g.) "...reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress" and "The President shall be commander in chief...of the militia of the several states, when called into the actual service of the United States."

Did DC have a "militia"? Who was in charge of appointing officers and training?
Actually, while there were state militias, the Militia Act effectively created a militia of the United States, subject to federal regulation, statute, and control.

I'm not sure that DC actually had a militia. Remember that when the Constitution was written, the expectation was that DC would be the seat of government. It is not clear to me that everyone understood that it would be a major population center as well. (After all, why would it be? The federal government was one of limited powers. How many clerks does it take to run a government that small?)

At least one critic of the Constitution warned that because DC was not part of any state, and therefore not subject to the extradition obligations imposed on the states, it would soon be filled with criminals. He was right, for the wrong reasons.
3.9.2007 5:42pm
Clayton E. Cramer (mail) (www):
A.S. writes:

I was thinking about this question also. I note that DC does, in fact, have a National Guard. (Of course I realize that the term militia is braoder that just National Guard.)
Not broader--contrary to. The National Guard was created under Congressional authority to raise standing armies, because some militias refused to serve overseas during the Spanish-American War. What we now call the National Guard would have been regarded as a "select militia" or "trained band" by the Framers--and regarded with considerable suspicion by many leaders of the time. My new book Armed America has considerable discussion of the conflict there, and how ideology won out over experience.
3.9.2007 5:45pm
Adam White (mail):
"a free State" likely meant what Madison originally wrote, "a free country"

I confess that I've only briefly paged through my pocket constitution, but did the 17971-era Constitution refer to the country as a "State" anywhere else? I don't think it did.

Silberman cites the words of one anti-Federalist, Elbridge Gerry, for the proposition that "State" and "country" were synonymous. But Silberman's logic completely fails. Gerry said, "A well-regulated milita being the best security of a free state, admitted an idea that a standing army was a secondary one."

Putting aside the fact that Gerry's remarks are recorded as "state," not "State", Gerry could still be referring to the state militias and the federal standing army. His point may well have been that although an individual State's best protection may be its own milita, the Federal government's standing army would be the runner-up. I'd say that that's an eminently plausible reading of Gerry's words, and it would not require the reader to assume that the Framers weren't incapable of assigning consistent, precise meaning to their words.
3.9.2007 6:10pm
aces:
I was thinking about this question also. I note that DC does, in fact, have a National Guard. (Of course I realize that the term militia is braoder that just National Guard.)

Having recently engaged in a lengthy debate about whether the U.S. Air Force is constitutional, when can we expect a similar debate for the D.C. National Guard?
3.9.2007 6:51pm
Mark Field (mail):
I have a different question about the "state" issue. As I see it, there are two separate questions the DC court had to answer:

1. Does the 2d A apply to DC?

2. Assuming it does, does it create an individual right or a collective one?

There can be a dispute about whether the 2d A applies to the states (Cruikshank), but it would be hard to argue it doesn't apply to DC (except for the dissent's argument, which I'll set aside for now). The whole point of the BoR, after all, was to restrict the new federal government.

However, that leaves the DC Circuit in a unique position. It could rule in favor of an individual right and still not conflict with any other circuit because it need not have decided the incorporation issue. Assuming I'm right, is there a conflict in the circuits which would force the Court to grant cert?
3.9.2007 7:27pm
jgalak:
Mark Field - I think you (and the dissent) have it exactly backwards - the two questions are out of order. They should be:

1) Is the 2d A an individual or a collective right?

2a) If it is collective, we reach the question of whether it applies to DC or only to the several States

2b) If it is individual, it applies across the board, to everyone, regardless of state, district, or tertiory, just like the 1st, 4th, 5th, 6th, 8th....
3.9.2007 8:03pm
Eugene Volokh (www):
Adam White: Good question; it prompted some research that led to the "straight outta Blackstone" post I just blogged.
3.9.2007 8:07pm
Mark Field (mail):

Mark Field - I think you (and the dissent) have it exactly backwards - the two questions are out of order.


I don't think this is right. Let's assume the 2d A creates an individual right. A court still has to decide if the Amendment applies to the states. Just for example, in the Barron v. Baltimore era, there wasn't much doubt that the Eighth Amendment, for example, created an individual right. That right just didn't apply to the states. Whichever question it takes first, the judiciary has to address the issue.

It may be that other circuits didn't decide the issue on incorporation grounds (I don't know). If they did, though, there wouldn't necessarily be a conflict in the circuits even if those other circuits disagreed with DC about whether the right was individual or collective.
3.9.2007 8:44pm
Retiree (mail):
Doesn't the following shoot down the idea that the militia is only the national guard? Or is this definition now obsolete.

TITLE 10 > Subtitle A > PART I > CHAPTER 13 > § 311
b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
3.9.2007 8:46pm
Cornellian (mail):
Based on my very quick reading of the dissent, the basic overall argument is: any individual right that exists is for the purpose of promoting militias to protect the states, and since DC is not a state, the amendment does not apply there.

I suppose her logic is that there can't be a militia defending DC against federal government encroachment because DC is already directly subject to federal control, so there's no state to defend. Interesting textual argument, though I don't express any opinion as to how that squares with the history of the 2nd amendment or the creation of the District of Columbia.
3.9.2007 8:49pm
Don Meaker (mail):
Historically, the District of Columbia had a militia, and because of those loyal militia forces, Abraham Lincoln was able to be inaugurated. There were many disloyal militias too, but they were disbanded when US Army officers went out to each militia equipped with federal weapons, and demanded that each member take an oath of loyalty. Those being simpler times, the disloyal militia, ie. those whose members refused to take such an oath, were disbanded.

So using the light of History, the assertion that the District of Columbia did have militia forces under the 1792 Militia act. The current act (Title 10, Section 311) has some minor differences, but to my reading, has nothing that would change this precedent.
3.9.2007 8:58pm
Alan K. Henderson (mail) (www):
I confess that I've only briefly paged through my pocket constitution, but did the 17971-era Constitution refer to the country as a "State" anywhere else? I don't think it did.
Not this country (which is always identified as "the United States"), but Amendment XI (ratified 1798) has the phrase "Foreign State."
3.9.2007 9:26pm
Dick Schweitzer (mail):
Dear me! does the 2d Amendment state that there is an extant "right?"
Yes it does.
Does it say to whom the right adheres?
Yes it does.
Does it say it is a right reserved to the States?
No it does not?
It says: ". . . the right of the people . . ."

Now, there is good reason at that time for the right to be "reserved to the people". If you wanted to raise a militia force, the people had to have weapons at hand and know how to use them (which is how the Continental Army survived and did its damage to British troops).
So, if some are looking for some implied "intent" to mean something else other than a "right of the people," consider that.

The term "people" is not modified into "the people of a state," it is simply people. People with a right that is not to be abridged.

I do not keep a gun, but was supplied weapons by the Federal government during the unpleasantness of 1941-45.
Have not used one since. But, I learned how before I served.

What happened to Constitutional scholarship since my turn in 1952?
3.9.2007 10:01pm
Dick Schweitzer (mail):
I mis-spoke (slightly)I should have said that right is not to be infringed, Which may be even a bit stronger than "abridged." (I think it is!)
3.9.2007 10:15pm
Brdo (mail):
Another linguistic question: the court seems to presume (as most people would do, based on the prevalent modern meaning of the word) that "well-regulated" means "closely controlled" or "properly supervised," based upon our understanding of "regulate" as meaning "to control or direct by a rule, principle, method." Isn't it more likely that "well-regulated" means/meant something closer to "smoothly or efficiently functioning" - in accordance with the definition of regulate as "to adjust so as to ensure accuracy of operation"? - in other words, the members of the militia would need to have direct access to arms in order to practice and maintain their skills at a proper level of competence.
3.10.2007 7:38am
Cyn23 (mail):
By chance, I have recently read Saul Cornell's "A Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in America." [Stephen Presser provides a supporting blurb.]

Other than passing references to territories, the book sadly doesn't directly touch upon the issue of federal enclaves and such. Still, the book spends a decent amount of time expressing the principle that a core understanding was that the provision was to be read along with the principle that state governments would control their militia, providing a check on federal power.

The regulator had special power here, therefore, and in D.C. the regulator is Congress. Are they a check against themselves? Also, Congress has special power over D.C. Does this factor in? It might when regulating weapons.

I have read past material on 'free state' rhetoric (and EV's pt is well taken), including while reading up on the 3A, but there is a case to be made that the state militia was going to be 'well regulated' by the states. Thus, this was a special kind of check on federal power.

Anyway, I think the dissent in Quicili had the best idea re the issue at hand -- that also involved handguns, and the dissent emphasized that a right to privacy secured a right to self protection. The book btw emphasizes gun rights involve dif. prongs, and that 'militia' (see Miller's emphasis on 'common defense') emphasized the communal, if by individual means. Since much gun rights talk is more individual, a privacy (or 14A) means seems to me more logical on certain grounds than a 2A one.

It also would avoid the dodge of the dissent, which probably does fall for EV's reasons along with the various purposes -- not just to protect state as state checks on the feds -- of the amendment.
3.10.2007 11:44am
Cyn23 (mail):
I'd add the book suggests the common understanding of 'well regulated' was that the right to keep and bear arms required state regulation to avoid the liberty from being a dangerous license ('ordered liberty').

Some argue it basically means self-regulating. A few at the time had a truly individual view on the matter, but it was a minority view. Not being a strict originalist, this is of only limited value imho.

Finally, has it been noted that at the time, there were often strict regulation of guns in urban areas? This included restrictions on specific weapons. Along with the federal enclave issue, there are many interesting 'as applied' questions here.
3.10.2007 11:51am
markm (mail):

Let's assume the 2d A creates an individual right. A court still has to decide if the Amendment applies to the states.

But not in this case!
3.10.2007 12:18pm
Mark Field (mail):

But not in this case!


Agreed. That was my original point, and it's why I'm not sure that this decision creates any conflict in the circuits.
3.10.2007 2:53pm
Mark Field (mail):

I'd add the book suggests the common understanding of 'well regulated' was that the right to keep and bear arms required state regulation to avoid the liberty from being a dangerous license ('ordered liberty').


For a discussion of "well-regulated", see Federalist 29.
3.10.2007 6:04pm
Eternal Vigilance (mail):
Let's assume the 2d A creates an individual right.

Let's not, let's rather continue the centuries-old precedent that the BOR enumerates pre-existing rights. Please note the difference, it is profound.
3.10.2007 8:52pm
Alan K. Henderson (mail) (www):
Keep in mind that regulating the militia is not the equivalent of regulating the private individual.

Refer also to Federalist 46:
Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.
In summary, the American advantage is twofold: widespread private ownership of arms, and representative local and regional governments that can, in an emergency and with autonomy from the central government, organize the militia into ready military units to face that emergency.
3.10.2007 9:44pm
J. Wilkes:
The Northwest Ordinance provided the framework for the organization of militias in the territories that existed around the time on the adoption of the 2nd Amendment:

Northwest Ordinance

In summary, territorial governors has the power to organize militias and appoint officers below the general grade. Those highest ranking officers were appointed by Congress.

Historically, this seems to undercut EV's point a bit. The organization of militias is clearly spelled out by the Northwest Ordinance and such power is exercised by territorial governors, not by Congress (with the one exception for general grade officers). The fact that Congress went to the trouble of spelling out such powers would seem to be counter to the suggestion that these powers were understood to exist absent any legislation. Shouldn't there be historical evidence demonstrating that Congress intended these same powers to extend to DC and the delegation of those powers?
3.12.2007 2:46am
PubliusFL:
Mark Field: There's definitely a split in the circuits, leaving the incorporation issue completely aside. Some of the cases in other circuits have upheld FEDERAL gun control laws on the basis that the 2nd Amendment only protects a collective right or a right dependent on militia service. The interpretation of the Constitution in those circuits now directly conflicts with the interpretation of the Constitution in the D.C. circuit. See, for example, U.S. v. Haney (2001) and U.S. v. Baer (200) in the 10th circuit.
3.12.2007 3:40pm
PubliusFL:
Typo - U.S. v. Baer was decided in 2000.
3.12.2007 3:41pm