March 19, 2008

Randy Barnett knows a few things about the DC gun case.

The Heller case will — he assures us — be decided on originalist grounds, because both sides are arguing the case that way:
The challengers of the law contend that the original meaning of the Second Amendment protects an individual “right to keep and bear arms” that “shall not be abridged.” In response, the District does not contend that this right is outmoded and that the Second Amendment should now be reinterpreted in light of changing social conditions. Not at all. It contends instead that, because the original intentions of the framers of the Second Amendment was to protect the continued existence of “a well regulated militia,” the right it protects was limited to the militia context.
Barnett also knows that the the Court will uphold the individual right to bear arms and not the collective right theory, because even the District of Columbia is saying it's an individual right (albeit "'conditioned' on a citizen being an active participant in an organized militia").

So it will be an individual right, but it won't change much of anything. Barnett explains: First, because it's a D.C. case, the issue of whether the 2d Amendment applies to the states won't be decided. Second, Heller presents an extreme fact pattern: the ban on having an operable gun in your house. The Court can strike that down without threatening other less drastic laws.

Barnett is reminding me of one reason why I haven't gotten too excited about this case. (Another reason is that it's a personal quirk of mine to get unexcited when I see other people getting too excited.) But Barnett tries in the end to say why the case is actually important:
For one thing, it would be a vindication of originalism. More importantly, the private ownership of firearms is a hallmark of American liberty....
This seems like a small pay off after so much work. There will be a right, but it won't be too useful. Barnett even frets that legislators will slack off on the protection of gun rights because they'll be able to act like the courts will take over. Announcing the individual right is a "risk," he says, but it's "worth taking," now that the case is before the Court. It would be worse for gun rights supporters to hear that the right isn't there at all, wouldn't it?

30 comments:

Simon said...

"It would be worse for gun rights supporters to hear that the right isn't there at all, wouldn't it?"

You attributed the litigation strategy in Printz to similar concerns, didn't you?

vet66 said...

This discussion still fails to answer the question that if I give up my weapons how do we keep the criminals from obtaining them?

Gun laws remind me of the days of prohibition where enforcement was spotty at best and, ultimately, a failure.

A better discussion would involve an explanation as to why I have no rights until I become a victim. Whereas, the perp would claim any number of bogus reasons for his behavior i.e twinky defense, wasn't breast fed, temporary insanity, know full well he will probably not serve out his full prison term account prison overcrowding.

In the meantime rapists are let loose on society in the vain hope that they can be mainstreamed into our midst. What is recidivism and how do we protect ourselves and our families?

Windbag said...
This comment has been removed by the author.
T Mack said...

(Another reason is that it's a personal quirk of mind to get unexcited when I see other people getting too excited.)

How anti-social are you? What, you think your smarter then everybody else?
My father, who graduated from Harvard law school, said "Those who can do, those who can't teach and those who can't do and can't teach become law professors."
I'd pay a buck or two to see your psch profile Anne. What do you say?

Windbag said...

From the Washington Post today: "Justices balanced the commands of a Constitution written more than 200 years ago with the modern-day questions presented by a gun ban that, it was argued, either prevents the law-abiding from a means of self-protection or keeps more guns off the streets of the nation's capital."

Banning guns indeed deprives people from a very effective means of self-defense. New Orleans, in the aftermath of Katrina, demonstrated the benefits of having a gun handy when the police cannot reach you, because of flood, abandonment of their duties, or some really good help-yourself deals at Wal-Mart.

The only guns that gun laws keep off the street are those that law-abiding citizens decide not to possess, else they'd be in violation of the law. Criminals aren't deterred by laws; rather laws are viewed as obstacles and challenges.

For those who think that we no longer need the 2nd amendment, then at what point do we no longer need the 1st? As much as The View offers good evidence for the justification of tossing out the 1st amendment, it still is a bad idea.

I live in a carry and conceal state, and in a very small town. It's comforting to know that any time some criminal decided to rob a store or go on a rampage, there would be plenty of decent neighbors and friends ready to take out the criminal. Violence is a fact of life, in any society. Being prepared to deal with it is more than a right, it's an obligation, regardless of what the Supreme Court thinks.

Simon said...

vet66 said...
"This discussion still fails to answer the question that if I give up my weapons how do we keep the criminals from obtaining them?"

Perhaps it's not being answered because it's a question that goes to whether government should ban guns, as opposed to whether government (more particularly, am arm of the federal government) can ban guns, consistent with the Second Amendment. "Because it's a really bad idea" isn't a Constitutional argument.

Simon said...

BTW: Randy Barnett may know a few things about the DC gun case, but there are a few things about it that Dahlia Lithwick seems to have forgotten. Heller, she writes, is "the abandonment of every principle of strict construction, federalism, and judicial modesty in which the Roberts Court ever purported to believe." As much as I like Dahlia, this is a silly claim since no member of the Roberts court has ever purported to believe in strict construction (Scalia, Roberts and Alito have expressly disavowed it), and this is a case that without a federalism angle, as Bernstein points out.

Ann Althouse said...

Simon: "You attributed the litigation strategy in Printz to similar concerns, didn't you?"

The lawyer for the plaintiffs was a gun rights advocates who chose to base his case on a federalism ground and said he did that because the Court was susceptible to federalism arguments but not to gun rights arguments. (His case successfully challenged the federal law imposition of a duty on local law enforcement officials to do background checks on gun buyers.)

Also, I haven't read that Bernstein thing, but there is a federalism concern in a way. No states are involved, but the principle of decentralized decisionmaking is in play.

Ann Althouse said...

tmack: " t mack said...(Another reason is that it's a personal quirk of mine to get unexcited when I see other people getting too excited.) How anti-social are you? What, you think your smarter then everybody else?"

Tmack, your nickname links to a blog named "Libertarian Militia," but obviously you aren't much of a libertarian. You think someone who is put off by the passions of crowds has a psychological problem? Why don't you go attend a rally?

Ann Althouse said...

And it's "you're smarter" not "your smarter." And I'll confess that I do think I'm smarter than you.

John K. said...

"No states are involved, but the principle of decentralized decisionmaking is in play."

Kevin Gutzman, writing at the CNN Anderson Cooper blog, says this:

"[T]he District of Columbia, insofar as it behaves as a state, is properly treated as a pseudo-state by the Supreme Court.... Congress long ago delegated home rule functions to D.C., and it allows residents to elect mayors, city councilors, and a delegate to Congress. When it comes to the Second Amendment, then, D.C. is a state, and the Second Amendment does not restrict its policy-making discretion. This is not to say that gun control laws are a good idea. It also does not mean that D.C. residents do not have a right to keep and bear arms. What it means is that if they want that right to be respected, people in D.C. should take that up with their own government, not end-run the republican process by trying to get the Court to overturn its valid laws. If the conservative majority on the Supreme Court rules in favor of Mr. Heller and against the D.C. gun laws, it will be ruling against the original understanding of the Second Amendment."

http://ac360.blogs.cnn.com/2008/03/18/gun-control-the-second-amendment/

Not sure I agree with that, but it does represent a point of view I hadn't heard before.

Simon said...

Ann,
You only partially took the bait on my effort to get you to plug your anti-commandeering article. ;)

"[T]here is a federalism concern in a way. No states are involved, but the principle of decentralized decisionmaking is in play."

That's true, although I think that the formal and even normative aspects of federalism don't perfectly overlap with subsidiarity. Even within the normative federalism model, it seems to me, you're looking for ways to most effectively preserve and protect individual (usually federal) rights, and rights are subtractive - they're limitations on the power of government to make decisions, decentralized or otherwise. I think that the thrust of the court's more formalist federalism has more been to gently remind the national government of its limits, and to preserve the meaningful existence and functioning of the state sphere, than it has been motivated by particular commitments to distributed decisionmaking. (For example, Scalia's Raich concurrence is hard to square with your view of normative federalism, I think, but it makes some degree of sense within the rubric of formalist federalism. Of course, as you've pointed out before, it may just be that Scalia doesn't care about federalism anyway.) Now, maybe that overstates it a little, maybe the Federalist Five's view on that matter is a little incoherent, maybe Justice Kennedy's view is a little more in line with how you've articulated federalism concerns, you know, there's a whole galaxy of issues I'm glossing over here, but the point I'm trying to get to is that if Dahlia's claim is that the Roberts court is abandoning its federalism commitments, for that claim to have force, the court has to be abandoning the commitments that it actually had in mind, rather than any other motivations that might lead you or I to support those decisions. Hopefully that coheres, I'm not sure I'm making much sense today!

Simon said...

John,
Even though the District functions as a quasi-state, it remains, necessarily and fundamentally, an instrument of the federal government. Among various other consequences of that is that the application of the Second Amendment as it applies to the District of Columbia turns on the original meaning of the text in 1791. By contrast, assuming Heller comes out favorably, in a later case brought against a state, the correct interpretative criterion will not be understandings extant in 1791, but the understanding of the Second Amendment in 1868. Or at least, it will be if they do it right, which they probably won't. ;)

John K. said...

BTW Ann, I was pleasantly surprised by the liberality of the Wisconsin Law Review in publishing my student comment on "The Fit Between the Elements for an Informed Consent Cause of Action and the Scientific Evidence Linking Induced Abortion with Increased Breast Cancer Risk" (If I had more time I'd have written a shorter title), but then I recently discovered that back in 1995 the WLR also published an article titled "The Myth of the Rule of Law" espousing really anarchist ideas (along the lines of Randy Barnett's muse Lysander Spooner, and Barnett himself, before he became an anarcho-imperialist).

Neither article is the kind of thing most people would expect The University of Wisconsin or its law school to give published voice to. Good for you.

Eli Blake said...

Let's hope that the SCOTUS doesn't limit the right to bear arms to members of the militia, as per the DC argument.

Imagine a society in which the only people allowed to have guns were the Timothy McVeighs and the Chris Simcoxes of the world. Now, THAT would be a scary society!

Bruce Hayden said...

Kevin Gutzman

Simon did answer this. Kevin Gutzman, writing at the CNN Anderson Cooper blog is wrong. While the District may operate to some extent as a state, it isn't one. It is an arm of the federal government, and has just as much power as Congress gives it.

I can understand why Kevin may wish this, after all, if D.C. were a state, then the Democrats would have two more Senators and one or two more Congressmen. But the fact that they have one, long serving, non-voting delegate instead of two voting Senators and one or two voting Representatives is just one more instance of D.C. not being a state. (My understanding is that their delegate sometimes has voting rights in committee, depending on which party has control of the House at the time).

Note also that all of the states have constitutions, and most such address the gun issue. D.C., not being a state, doesn't have a real constitution, either.

The contention that D.C. was a state, and therefore the 2nd Amdt. didn't apply in raw form to it was never at issue. Not even D.C. was willing to argue that point, but rather accepted that it was, indeed, part of the federal government.

Cedarford said...

One thing I am overjoyed about is that Sandra Day O'Connor is gone, because of how many major decisions she made ineffectual by wrapping them in so much O'Connor opacity, vapid contradictory statements, and nebulous "tests" that scholars said everyone was confused what the decision meant, how the decision would be implemented, if at all.

The great challenge of going in the 2nd Amendment area is not deciding it is an individual right, it is making up for 100 years of no guidance and what scholars appear to think was a bad Miller decision that citizens had a right to firearms of military purpose, but NOT to weapons the Court incorrectly said had no miliary purpose like "trench-clearers" such as sawed off shotguns and Tommy guns they forgot were used all the time in modern warfare. And it is not just firearms, but a whole lot of other weaponry states and cities had previously restricted from owning on dubious "militias don't use them" premises - like crossbows, pepper spray, martial arts weapons, knives longer than 4", swords, etc.

The hard part is figuring out what they put in the decision about limits to states and municipalities ability to restrict self-defense means to law-abiding citizens.
What classes of weapons will remain unavailable to ordinary cirizens (nukes, HE explosive devices, MANPADs, machine guns) and what will be permitted - handguns, crossbows, all semi-auto "Feinstein-designated assault" arms?

Who in the interests of public safety can be barred - not just felons, but also mental defectives? People under 21, 18 unless with an adult?
What about liability and all the anti-gun people's laws and regs about having weapons locked and disassembled?

What about the tactic of states and cities to deliberately make gun ownership as expensive and difficult as possible - discouraging citizens and effectively banning "gun rights" for those of modest means? Where all, even military and previous owners and hunters have to do a 200 dollar "gun safety" course and pay a 150 dollar application processing fee and "FBI fingerprint check". then a 60 dollar a year permit...and only if some mid-level cop or functionary can do an interview, then look at the applications - if not busy with other pressing duties for years or months..

Or the existing laws that effectively - in places like NYC, Boston, San Francisco - limit handgun carry permits to private bodyguards hired by the wealthy, or those high-status people with clout and connections, retired cops and judges - but not retired special ops or MDs?

Do all those laws that discriminate against citizens get set aside?

lurker2209 said...

Simon--I'm not sure I follow your argument regarding 1868. Is the idea that the 14th amendment doesn't apply to D.C? I'd love to see you explain that, because I'm curious.

EnigmatiCore said...

"personal quirk of mine to get unexcited when I see other people getting too excited"

Hopefully excepting bedroom activities...

Zeb Quinn said...

And it's "you're smarter" not "your smarter." And I'll confess that I do think I'm smarter than you.

Ann,

While I happen to be on YOUR side as far as the larger substantive point here goes, for the 16 years that I've been on the net it has nevertheless pretty much been the rule of discussion that those who resort to picking apart spelling and grammar lose the argument automatically by default. You would have been better off ignoring him.

Simon said...

Lurker2209,
To get to the short answer to your question, I have to take a slightly longer walk first. I had another comment earlier today that expanded a little more, but bear with me and I'll go through the gist.

The starting point is that, as I noted in my reply to Ann above, Constitutionally-protected rights rights are subtractive - they're limitations on the power of a government to act in certain ways affecting its citizens, rather than positive entitlements (cf. Harris v. McRae, 448 U.S. at 317-8 ("[a]lthough the liberty protected by the Due Process Clause affords protection against unwarranted government interference with freedom of choice in the context of certain personal decisions, it does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom")). So the question becomes, what's the criterion for deciding what subjects the people can't democratically resolve in the legislative process?

The originalist's answer is that those issues subtracted from the democratic process are those issues that the people consented to remove from the democratic process in ratifying the Constitution and its amendments. When dealing with actions of the federal government that seem to violate a provision of the Bill of Rights, to simplify somewhat, we ask, what was the original understanding of the text that was ratified? That is, we ask "how the text would be understood by a reasonable person contemporaneously with its enactment, and when the text is gaudy, fraught, or even internally contradictory, what conclusion would that reasonable person draw from the text, in light of the apparent purpose of the statute placed alongside the balance of the corpus juris ... ?" Dodd, when Two Wrongs Do Make a Right: the Strange Case of Burke v. Bennett at 16 (available at SSRN) (2008) (footnote omitted). So in this case, we want to know, what would a reasonable person in 1791 have understood the text "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" to have meant in the context of a proposed Bill of Rights. Thus, if there's a dispute about the meaning of the Second Amendment, was ask what that text meant in 1791, when it was adopted, and if there's a dispute about an ambiguity in the 19th Amendment, we'd ask what the text was understood to mean in 1920. (You'll spot the interesting conundrum this poses for the 27th amendment.)

By its own terms, however, the Bill of Rights itself doesn't bind the states, only the federal government. The Bill of Rights is "incorporated" - legalese for "made enforcable against" - the states by the Fourteenth Amendment. As you'll probably infer from the discussion above, an originalist who needs to interpret a clause of the civil war amendments means is going to ask what the text of the amendment would have been understood to mean at the time of its adoption, which is to say, the mid-to-late 1860s. Although people disagree on how the Fourteenth Amendment incorporates the protections of the Bill of Rights, that difference isn't particularly salient for our purposes here. I think it's easier to illustrate the point if we look at it through the lens of how I think this trick is accomplished, so I'm going to write from that perspetive (just be aware, though, that this is not the answer your lawprof is looking for). I argue - in good company, but the court has not heeded us - that the Fourteenth Amendment enjoins any state from "mak[ing] or enforc[ing] any law which shall abridge the privileges or immunities of citizens of the United States," that the "privileges or immunities of citizens of the United States" were those rights that the federal Bill of Rights allowed citizens of the United States to assert against exercise of federal power, and that as a result, the states are forbidden from passing legislation that violates the Bill of Rights. That oversimplifies a bit, but you get the idea.

Hopefully, it's clear from the discussion of originalism above that, if the priveleges and immunities of citizens of the United States were understood to be the protections of the Bill of Rights, and the authoritative criterion in construing the Constitution is the understanding extant at the time a provision was ratified. The upshot of this is that when we evaluate a "second amendment" claim against an action by a state government, we aren't applying the Second Amendment: we're applying the Fourteenth Amendment. So in the event of ambiguity, we aren't interested in what a reasonable person in 1791 would have understood the text "[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" to mean in the context of a proposed Bill of Rights; rather, we're interested in what priveleges and immunities a reasonable person in 1868 thought the Second Amendment conferred on him that could be asserted agains the federal government.

Often, this will be a distinction without a difference. And, of course, determining the original meaning of the Second Amendment will inform the search for the understanding of the Second Amendment in 1868 when it was incorporated against the states. But where there is a difference between the former and the latter, it's the latter that controls, because, to reiterate, we are looking for what the people who bound their hands by substracting from the democratic process consented to remove from the democratic process.

with this in mind, to come back to your question, no, the Fourteenth Amendment doesn't apply to D.C. (with one exception). The point is that the District of Columbia is a federal entity, and it is therefore bound by the Bill of Rights itself - and, therefore, by the original understanding of the bill of Rights c.1791. A subsequent case (assuming Heller comes out the right way, and perhaps I shouldn't tempt fate by assuming that), that challenges state action under whatever rubric Heller comes up with, may well be different, because states are bound by the Fourteenth Amendment and, in functional terms, by the Second Amendment as that amendment was understood when the states were subjected to its limits in 1868.

That probably raises as many questions as it answers, all of which I'm happy to (try to) answer, but it's as short as I can make a complicated issue in a blog comment. Look, Ann, no footnotes. ;)

Bruce Hayden said...

To hopefully save everyone the work of digging through Simon's long piece on orginalism, etc., the answer to his question about the exception is that Equal Protection has been reverse incorporated via the 5th from the 14th Amdt. in the case of D.C.

While his post is interesting to an attorney (or more likely a law professor, of which I am not), I would suspect that it is a bit dense for the laity. It does tie in though quite well to the discussion at hand.

On the other hand, if you are an attorney, Simon's blog is very enjoyable.

Mortimer Brezny said...

First, because it's a D.C. case, the issue of whether the 2d Amendment applies to the states won't be decided. Second, Heller presents an extreme fact pattern: the ban on having an operable gun in your house. The Court can strike that down without threatening other less drastic laws.

These would seem to me virtues, not vices.

Simon said...

Bruce - if you mean my post about Bolling that I linked to that post just tees up the shot. Bolling itself is absolutely absurd, of course, but as my post discusses, in a system where stare decisis has any meaning, to say a case was wrongly-decided asks the question of whether it ought to be overruled, not answers it. The post I linked to lays the groundwork for the discussion in the second half of the post, which I'm still writing.

Thanks for the compliments, though. :)

Daryl said...

Our right to self-defense is a human right, and it's found in the 9th Amendment (the one that liberals like to claim "doesn't mean anything" because they've already god all of the rights they want).

Very few 2nd Amendment advocates actually advocate for military weapons in civilians' hands. I'm talking of course about select fire weapons, like the M16s and Kalashnikov rifles used by modern armies. I'm talking about 40mm grenade launchers and M249 SAWs. Those are "militia" weapons. Lightweight anti-tank grenades/rockets are very natural militia weapons--especially if the purpose of a militia is to be able to stand up to better-armed enemy forces. Fully automatic shotguns and IEDs would fall into this category (i.e., "wonderful" weapons, in the words of Alan Gura, that nonetheless we don't want civilians walking around with)

The history of the 2nd Amendment is simple enough: as part of the deal to get the Constitution passed, the framers gave the states sole right to regulate their own militias. The federal government took itself out of the process. That didn't mean the federal government gave up the right to regulate militias in territory it controlled, like the District of Columbia.

There's no reason to incorporate the 2nd Amendment by the 14th. If anything, the Federal Government's victory in the Civil War would give it increased control over regulating how American citizens are armed.

Likewise, the right to sexual autonomy/intimate relationships should be considered found in the 9th rather than 4th Amendment. "Privacy" only goes so far: it certainly doesn't extend to things you want to do in public, like the right to have a marriage ceremony recognized or to hold hands in public.

A simple recognition of sex is a basic human need and therefore requires intermediate scrutiny to meddle with would be a much better rule than what we have now. Further, the Court should expressly rule out moral outrage as a factor to be considered in that analysis.

Ban Polygamy? Passes intermediate scrutiny. Arrest gay men for having sex in a public bathroom? Passes intermediate scrutiny. Ban gay marriage? Fails intermediate scrutiny. Arrest someone for screwing her dog? Passes intermediate scrutiny. Waiting periods for abortions? Probably passes intermediate scrutiny. This would explain pretty much all of our current rules, make them easier to understand, and leave the American people feeling less like the Court is just making it up as it goes along (penumbras and privacy are phony justifications to get the rights liberals want without recognizing conservatives' human rights).

What would self-defense/gun rights look like under the Ninth Amendment? Simple: governments couldn't pass any law that substantially infringed on a person's reasonable ability to protect him- or herself. For example, California could ban "assault weapons" with certain cosmetic characteristics, because people can still defend themselves with all sorts of guns, but D.C. can't strip citizens of all functioning firearms. Everyone has the right to a few basic, core types of guns well-suited to civilian home defense:

handguns (revolvers, semi-automatics, and bolt-action)
rifles and carbines (semi-automatic, pump-action and bolt-action)
shotguns (semi-automatic, pump-action and bolt-action)

California has disallowed new sales of semi-automatic shotguns that have both a folding stock AND a pistol grip, but still allows people to purchase semi-automatic shotguns with a fixed stock and a pistol grip. Our right to self-defense is well intact.

On the other hand, our right to own militia weapons is being infringed in every state, including Montana (in which its legal to own a fully automatic submachine gun with a silencer, as long as you have 2 BATFE tax stamps), because we aren't allowed to possess real firepower, i.e. hand grenades, grenade launchers, and anti-tank rockets.

Our founding fathers did not "goof" in leaving out sexual privacy and self defense. That's what the 9th Amendment is there for. They went out of their way to say that their list was not 100% complete. They went out of their way to prevent idiot judges, like the ones we have now, from limiting our freedoms to what was enumerated.

But if people won't recognize our rights in the 9th, we'll just have to shoehorn them in to other amendments. Putting self-defense into the 2nd Amendment is less crazy than putting abortion into the 4th. If that's how liberals want to do the Constitution, that's how we'll just have to do it.

I would go so far as to say that we should have a new Constitutional amendment, stating four things:

1 - reaffirm the 9th Amendment
2 - sex rights are subject to intermediate scrutiny, and moral outrage cannot be a consideration
3 - sex rights are no longer part of the 4th Amendment/privacy thing
4 - the right to self-defense is subject to strict scrutiny. The right to own particular firearms is subject to intermediate scrutiny.
5 - abolish the 2nd Amendment as no longer necessary, in light of this one.

Call it the "Happily-Married Gay Couples With Closets Full of Assault Weapons" Amendment.

John K. said...

Amen brother.

rcocean said...

Simon,

Did the writers of the 14th Amendment state in clear language that the Bill of Rights was from then on applicable to the states?

Or this another case where five SCOTUS judges "discovered" the hidden meaning of the 14th amendment years afterwards?

John K. said...

I would be remiss, though, if I didn't clarify that a society is unfree to the extent it relies on violence. But if we want to "stop the violence," or at least de-escalate our reliance upon it, the most obvious place is to start is with the violence perpetrated by government.

Simon said...

RCocean - funnily enough, both. The direct answer is yes - it provides that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...." To my mind, that's pretty clear. .Even the clear statement rule requires only that Congress "provide[] an unmistakably clear statement of its intent to abrogate" a state's sovereign immunity, which does not require it said in as many words, Seminole Tribe, 517 U.S. at 55-7 (internal quotation marks omitted); "'such overwhelming implication from the text as [will] leave no room for any other reasonable construction'" will suffice, Atascadero State Hospital, 473 U.S. at 240 (alteration in original). I have no idea, indeed, cannot conceive what the privileges and immunities peculiar to citizens of the United States might be other than the rights they had against their government, and once that much is conceded, incorporation follows like a piston.

However, the court proceded to ignore that clear statement, and, functionally-speaking, read the clause out of the Fourteenth Amendment in the Slaughterhouse Cases. Thereafter, the court has "selectively" incorporated those parts of the Bill of Rights that a majority of the court has, from time to time, deemed sufficiently fundamental to be "implicit in the concept of ordered liberty," as the dreaded phrase goes, incorporating them as a subset of substantive due process. So, really, the answer to your question is that the Supreme Court ignored the clear meaning of the text and discovered much (but not all, and many things besides) of its import "hidden" in a different clause. Justice Black's dissent in Adamson v. California is the canonical text on this subject, in my view.

Kevin R. C. Gutzman said...

The Bill of Rights' (thus, the Second Amendment's) purpose, as Chief Justice Marshall noted in _Barron v. Baltimore_ (1833), is to limit the authority of the federal government. The states, under the Bill of Rights as enacted, retain full power over speech, press, arms, etc., within their own territories.

DC is not a state, but Congress within DC has the powers of a state legislature within a state. This includes the power to regulate speech, press, assembly, and ownership of arms.

Of course, I leave aside the fallacious Incorporation Doctrine and other concoctions of historically ignorant judges, which do not much interest me.