July 13, 2005

A Slight Distinction, Take Two

by PG

Will Baude's response to criticism of his post on the House's reversing D.C.'s gun ban makes me think that either my critique was poorly written or the arguments made in it were too negligible to address. If it was the former, hopefully I am being more clear in this one, although I hope that none of the negative implications of the style I'm using will attach to the content. In its nastier form, close parsing of another person's argument is called "fisking," but such attacks are made with blatant lack of respect, which certainly is not the case here.

For the most part, the criticisms seem to be that because D.C. residents do not vote for members of Congress, Congress should be extra-obliged to goven as if they did.

Congress is acting as an unelected governing body with respect to its powers in the District. It can pass laws that apply only to D.C. and to none of the places that actually put Congresspeople in office. The kind of people who sloganeer, "Taxation without Representation" make the comparison to the colonial situation because there is a parallel. That the English Parliament had been elected by people residing in England did not make it a body with any democratic connection to Americans.

Relatedly, the argument goes, Congressional legislation that superintends state prerogatives is not that worrisome because the states had a hand in making it. (Leaving aside, of course, the fact that in this post-17th-Amendment world, Senators frequently have interests, platforms, and programs that differ, for better or worse, from those of the state government.)

It is not the states that have had a hand in making Congressional legislation, but rather the people of the states, and the distinction between the two is one the Constitution recognizes in the Ninth and Tenth Amendments, among others. The state governments might have opposed the Gun Free School Zones Act because the "injection of federal officials into local problems causes friction and diminishes political accountability of state and local governments" (Lopez), but this is an interest of the state government that not only may be unshared by the state's senators, but also by the state's people. Congress, especially in this post-17th Amendment world, legislates on behalf of the voters, not on behalf of the state governments.

First off, note that this D.C.-deserves-extra-care argument probably should not be universalized. There are of course billions of people in the world who also do not elect members of the United States Congress (nor even the president). Obviously, their lives and rights should not be ignored by the United States, but I take it that few people, even globalists like myself, think that "political fairness" mandates letting the desires of foreign non-citizens veto the desires of voting Americans.

If those billions of people were having their own elected officials' decisions overriden by the U.S. Congress, I think political fairness might well require letting them have a vote in congressional elections. One of the common complaints made against bodies such as the World Trade Organization and the European Parliament is that their rules often run counter to what the people who must live under them would prefer. But at least all EU citizens get to vote for the members of their Parliament, and the WTO's undemocratic autocracy is enforced upon all; Americans don't get to vote for the person who will declare a certain subsidy illegal in Panama, and vice versa.

And of course residents of D.C. (unlike foreign non-citizens) elect a president who has veto power over and various other administrative weapons against Congress.

Again, the public choice problem of a regulation that applies only to one small group of people arises here. The half million residents of Washington D.C. have three electoral votes, which are unlikely to make or break a candidate in most elections. Therefore, there is a strong political incentive to ignore their preferences when such are opposed to lobbying groups. Signing off on ending D.C.'s gun ban won't force a change on the residents of 50 states, but it will win the approval of gun advocates in those states; D.C. thus becomes a sacrificial lamb.

They also (unlike foreign non-citizens) have the plenary right to leave the district and set up shop across the border in Maryland or Virginia and begin voting for Congress. This is not to say that D.C. is a foreign country, just that it is far from clear that the mere fact that those who choose to live in a federal enclave rather than a state can't elect congress members from that state is a violation of "political fairness".

And the colonists could have just moved back to England if they were so darn set on being represented in Parliament.

That is a cheap retort, but I suspect that some Washingtonians' belief that they are in a pre-Revolutionary War situation would make it a popular one. Certain capacities perhaps should not depend on one's geographic location. For example, African Americans -- the majority racial group in D.C., by the way -- could have left the states that prevented them from exercising their franchise. However, that one should be able to vote without barriers put up due to one's race seems to have struck the country as whole as a sufficiently important right that we ended up with the Voting Rights Act of 1965 instead of a complete exodus of voting-minded African Americans from the South.

There are valid reasons to think that some local matters should be left local, even when Congress has the ultimate authority and responsibility to mind the shop. But given how attenuated the structural safeguards of federalism in this country actually are, the argument for Congressional-Supremacy-Everywhere-But-The-Federal-Enclave will be quite intriguing, and there's no evidence that the NYT intends to make it.

As I said before, the NYT is making a political argument rather than a constitutional one (as is their wont, I believe), and I would bet that their protests against the House would be far quieter, or at least have to take a different tack, if the House were legislating for the entire country. But it's not. This is a point that cannot be ignored when discussing Congressional action with regard to D.C. versus Congressional action for the United States as a whole. Moreover, with specific reference to Lopez, even the states themselves were arguing against the federal legislation primarily on constitutional grounds, not pro-guns-in-schools policy ones; as Kennedy's concurrence notes, "Indeed, over 40 States already have criminal laws outlawing the possession of firearms on or near school grounds."

[For what it is worth, I favor a degree of decentralization in both states and federal enclaves, but here, given the presumptive unconstitutionality of the D.C. gun restrictions, I am inclined to give Congress extra leeway to enforce its Constitutional oath.]

Surely if the D.C. gun restrictions are "presumptive[ly] unconstitutional," their unconstitutionality ought to be corrected by the part of government, either local or federal, that generally decides whether something violates the Constitution, i.e. the judiciary. Congress did not appear to feel a need to set New York straight on the impermissibility of banning wine shipping from out-of-state suppliers by passing contrary legislation, but instead left the smackdown to the courts.

The courts don't seem to have a definite opinion that the D.C. gun restrictions are unconstitutional. The ban has been upheld at the district level in Parker v. District of Columbia, under the 1939 U.S. v. Miller precedent of the Second Amendment's being about "the preservation or efficiency of a well regulated militia." Appeal is pending. While I understand the argument that each branch of government should act to enforce the Constitution -- that it does not belong to the judiciary alone -- to say that something is "presumptively unconstitutional" in the absence of a judicial finding demands more than the barefaced statement.

Incidentally, I find Robert A. Levy of the Cato Institute agreeing with me on this point that the courts should decide before Congress gets involved. It's separation of powers, not politics (he and I are still divided on the question of whether the gun ban could be desirable) that makes strange bedfellows.

July 13, 2005 03:21 AM | TrackBack

A longer response will be forthcoming. In the interim, I would just like to express my surprise that both you and Robert Levey have subscribed to the modern nonsense that the judiciary's duty to interpret the Constitution somehow deprives the legislative branch of their duty to do the same. They take an oath too.

The D.C. Gun Ban's presumptive unconstitutionality has very little to do with U.S. v. Miller. It has to do with the text of the Second Amendment (and the history that makes it pretty clear that it meant what it said), which provides a right of the people to keep and to bear arms, which mandatory-dis-assembly-trigger-lock-no-ammunition provisions clearly infringe, without providing adequate alternatives.

Posted by: Will Baude at July 13, 2005 08:24 AM
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