Constitutional Amendments Or Constitutional Suggestions?

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.

U.S. Const., amend. II

Well, the government of the District of Columbia has filed its brief in District of Columbia v. Heller, No. 07-290, and its quite a piece of work.

According to the WaPo, the brief makes three key arguments:

The District's brief defends the law in three ways.

First, the brief says that the most reasonable reading of the first two clauses of the amendment is that it guarantees a right to gun ownership only in relation to some sort of military service.

"The Framers' phrasing of the Second Amendment was in fact a natural way to protect a militia-related right," the brief states.

Even if the court decides the amendment does protect an individual right, the brief says, it must be read as a restriction only on the federal government, to which it was aimed. "District-specific" legislation cannot "implicate the amendment's purpose of protecting states and localities from the federal government."

And if those first two arguments are decided against the city, the brief says, the court should uphold the restrictions as a reasonable response by the government to urban crime and a natural extension of what the brief says are gun-control laws that date back to when the District was the Town of Georgetown.

Dealing with the weakest argument first, the second --- that the Second Amendment is "a restriction only on the federal government" --- is likely to be laughed out of Court. That is, unless the Supreme Court is willing to reverse decades of precedent "incorporating" the protections of the Bill of Rights into the Fourteenth Amendment to apply them to the States. How's that for a prospect? Does the District really expect the Supreme Court to reverse decades of the "incorporation doctrine" to sate the gun-grabbers? Probably not; that's probably why only five pages of a 59-page brief are devoted to this silly argument.

Oh, and by the way, the District is an instrument of the Federal government, so the notion that the Second Amendment does not have direct application to it is absurd. The argument appears to be more of a construct based upon some extreme federalism argument, one which likely would not pass the lips of its advocates were it addressing anything other than the Second Amendment. Imagine, if you will, the hue and cry which would arise were the sentence describing that argument rewritten slightly:

"Even if the court decides the amendment does protect an individual right, the brief says, [the First Amendment] must be read as a restriction only on the federal government, to which it was aimed."

or

"Even if the court decides the amendment does protect an individual right, the brief says, [the Fourth Amendment] must be read as a restriction only on the federal government, to which it was aimed."

or

"Even if the court decides the amendment does protect an individual right, the brief says, [the Fifth Amendment] must be read as a restriction only on the federal government, to which it was aimed."

or

"Even if the court decides the amendment does protect an individual right, the brief says, [the Eighth Amendment] must be read as a restriction only on the federal government, to which it was aimed."

What fun. What makes some people think that Liberals/the far Left believes in individual rights?

As for the first argument, it is little surprise that it is being made by big government advocates. As the D.C. Circuit recognized --- and few gun-rights organizations, even the National Rifle Association, will admit --- the primary purpose of the Second Amendment is to protect the citizens' rights to the instrumentality to exercise their right of revolution against oppressive government.

Did you really think that it was mere coincidence that advocates of welfare-state nannyism are also the most strident gun-grabbers? They have good reason to fear the citizens' right of revolution.

The final argument, that D.C.'s law is "a reasonable response by the government to urban crime," is nearly as silly as the first. Any Supreme Court justice with knowledge of D.C.'s crime and murder rate might want to ask "How's that working for you?" at oral argument. After all, D.C. was, until recently, the murder capital of the United States, and its murder rate increased after passage of the gun ban.

The Respondent's brief should make for interesting reading.

As will the Supreme Court's response.