Sometimes when you want to comment on a major story of the day, it's difficult to figure out what to say that's any more important than the thousands and thousands of posts floating out there on the Net.
I mean, I'm a Libertarian, which practically requires me to have "cold, dead hands" tattooed on my forearm, doesn't it?
In truth I do believe that not only does the 2nd Amendment assert the right of individuals to own firearms, but also signifies the inalienable right of American citizens to make the determination (with due appreciation for the consequences) to employ deadly force in self-defense.
Yawn. So what? Not like this was news to anyone, right?
Let's try a different approach, and assume for a moment that the DC gun ban had been passed by a majority vote of the citizens. How would that change things? Can a community actually vote to restrict or even a constitutional right within its borders? This is actually a more interesting question than it first appears.
My first answer is, "Hell, no!"--thinking of freedom of speech, freedom of religion, security against search and seizure, etc. etc. The people who compose the majority of the population have no constitutional writ to take away rights from the minority who voted against it.
Yet two things complicate this issue: the original Federal nature of the government and the power of voluntary association.
It is important to remember that the framers of the US Constitution did not all hail from strictly Libertarian societies wherein the government was prohibited from messing with the people's individual rights. Massachusetts had an established church (which it kept until the 1830s) and sumptuary laws (a state-wide dress code for the uninformed). [Note: Virginia's George Mason actually wanted to give Congress the power to set up a national sumptuary law.] Maryland had laws forbidding the public production of theatrical plays. Virginia had laws on the books (honest!) detailing in which positions it was lawful to have sex with your wife. There are many other examples. Plainly, it was not the overriding belief of the Framers that government could not intervene in our private lives, it was simply their conviction that the Federal government should never be empowered to do so.
Read that way, the Bill of Rights is not just a list of individual civil rights, but also a list of powers that can only be employed by governments much closer to the people and therefore (at least presumably) much more directly answerable to them.
But then that all got swirled around in the immediate aftermath of the Civil War when the 14th Amendment completely changed the meaning of the Constitution in a very fundamental fashion. The original Constitution had (at least in some significant measure) protected the prerogatives of the States against Federal incursions with respect to individual civil rights. The 14th Amendment made the Federal government responsible for protecting the rights of citizens from the States. It wasn't actually until the early 20th Century that a specific Supreme Court ruling upheld the premise that the Bill of Rights impacted the States in exactly the same fashion as it did the national government.
The point? The idea that at least some level of the government is able to engage in setting social constraints, and the idea that the original US Constitution did not actually prevent states from making laws abridging religious freedom or freedom of speech suggests to some that there is merit in the idea that a community can set its own standards, regardless of the Bill of Rights.
Furthermore, we know of at least one way in which communities do this now, through the voluntary acceptance of deed restrictions. When we bought our current house, we did so with the knowledge that the deed included community-wide restrictions that had civil if not criminal weight. As I discovered during the recent Red Clay referendum run-up, those restrictions limited the number, kind, and locations of any political signs I might want to erect on my property. There have been widely reported cases in which such restrictions successfully (in court) prevented residents from flying the American flag. There seems to be a well-established principle that you can voluntarily abridge some of your own rights in the pursuit of furthering your own economic goals (better resale value). After all, you are made aware of the deed restrictions before you purchase the property, and if you don't like them, you don't have to choose to live there--at least so the argument goes.
(Which is why, by the way, I tell my twins we can't have a trampoline. It's in the deed restrictions. In reality I'm too much of a wimp to just snarl at them that I'm not about to pay the dental bills for their broken teeth.)
So, at this point we have some murky ground with respect to governmental interference in rights accorded under the Bill of Rights, and a definite answer that, yes, you can sign away some of your rights in a voluntary association. I wonder then, if it would be legal to create a suburb with deed restrictions saying it would be "firearm free"? Possibly. But the hitch is that nobody could get arrested for possession of a weapon under these provisions, only sued by the tenants' association. (And also notice that it's not the government doing the banning.)
Still, it does raise some food for thought about my hypothetical majority-approved handgun ban. I don't think the DC gun ban passes any smell test for Constitutionality, just like I don't think most State restrictions on abortion do.
Yet here's what intrigues me: the idea that citizens could reduce or eliminate certain rights also entails the converse, that they could expand them.
This is not unprecedented. The Alaska State Supreme Court has agreed that the Alaska's state constitution's significantly greater privacy provisions than the US Constitution protect the right of the State's citizens to possess up to four ounces of marijuana and smoke it in their homes without fear of arrest. So here is the case of a State being able to grant greater personal liberties than the US Constitution does.
Suppose that the citizens of Washington DC had decided by majority vote that the best way to reduce violent crime was to legalize the possession of fully automatic weapons inside a home for purposes of domestic defense? (Just a hypothetical, folks, don't hyperventilate. On the other hand, maybe then you'll appreciate the title of one of Simon Clark's recent posts: An Englishman's Home is His Machinegun Nest.)
Would we be in court today hearing arguments about whether a State or Locality could decide to materially increase an individual citizen's right to bear arms?
Words are slimy, twisty things. You think you've got them nailed down, and then they go out and bite you on the ass. The due process clause in the 14th Amendment, intended originally to provide civil rights for freedmen morphed in the 1870s into due process rights for corporations.
The unsettling question for me, therefore, in the DC gun ban case is one that nobody seems to be asking. If the Court were to uphold it (which seems unlikely, but what the hell you never know, especially with Stephen Breyer on the Bench), it would be making an implicit argument that our fundamental rights are not only subject to interpretation, but also to municipal or governmental revision. This is generally seen as bad news for civil libertarians, and good news for advocates of the Nanny State who have hatched a Commie plot to keep me from enjoying movie theater popcorn.
On the other hand, if such entities can reduce rights, it also stands to reason that they can increase them as well, and I can look forward to my freedom (speaking in a purely hypothetical fashion, of course, with no real Doritos involved) to toking up in my back yard some day--or maybe just the freedom to take whatever drugs I damn well please to fight terminal cancer.
Scary thoughts all.