Back in 2008 I pointed out some problems with resorting to the courts of the central state to vindicate our rights, in the context of the Heller gun rights case. I argued that the Bill of Rights limits the power of the federal government. It was certainly not meant not empower the federal government via the courts or Congress to strike down state laws. For example at the time the Bill of Rights was ratified (1791), several states had an established religion. (See my post State and Religion.) Obviously the prohibitions on state involvement in religion in the First Amendment were limits on federal not state power.
The same is true for the Second Amendment. I have never believed the prefatory clause about militias was a limit on this limitation on federal power. In my view a federal court should refuse to enforce a federal law restricting gun rights, since there is no enumerated power granted to Congress to enact such a general, national law. And as a backstop, the Second Amendment further prohibits such federal legislation. But does it limit the states? No.
I had problems with some aspects of the Heller case, in which the Supreme Court struck down a Washington D.C. gun law based on the Second Amendment. (See To Hell with Heller; Heller gives local governments “space within which to limit gun ownership”; The Great Gun Decision: Dissent; Gun Haters Happy with Heller; and other posts.) Not that I was that upset with it. I would have probably voted to strike it down too, on libertarian grounds (see my post Higher Law). And thus I praised Heller plaintiff Tom Palmer for fighting against unlibertarian laws (Tom Palmer’s Fight for the Right to Bear Arms).
Scholar Kevin Gutzman had another interesting critique of Heller: he argued that not only does the Bill of Rights not apply to the States, but it did not even apply to Washington, D.C. itself, as a sort of “pseudo-state”–a special jurisdiction under federal control that operates somewhat like a state. I noted this intriguing argument in one of my posts criticizing Heller, The Great Gun Decision: Dissent, where I wrote:
Second, as Kevin Gutzman notes, the Bill of Rights provides limits on the power of the federal government–not states, and not DC. So, as with the majority in the Kelo case, the dissent would have had the right result for the wrong reasons. In Heller, the majority is correct in how they construe the meaning of the Second Amendment; the liberals are blatantly, dishonestly wrong. But both sides incorrectly believe that the Bill of Rights applies to DC.1
Heller plaintiff Tom Palmer roundly condemned Gutzman’s argument as “just plain dumb.” And libertarian centralist and Lincoln idolator Tim Sandefur attacked both me and Gutzman, in a post entitled “Stephan Kinsella’s idiocy reaches new lows.”
What is interesting is esteemed libertarian and Cato scholar Richard Epstein has recently opined that the Second Amendment does not apply to Washington, D.C. In The Libertarian Gun Fallacy, Professor Epstein writes “the Second Amendment imposes no limitations on the states … Washington D.C. [is] the one place where the amendment has no application whatsoever.” (See also Damon Root on Libertarians, Guns, and Federalism.)