Time may or may not heal all wounds, but it certainly can bury most, if not all, hopes and idealism.  Before you label me a pessimist, read to the end.

          Buried in the annals of American history is an interesting debate involving Article I, §8, Clause 17 of the U.S. Constitution.  The District Clause.  Interest in this clause has resurfaced in the context of proposed legislation that would grant District residents voting representation in the House of Representatives, a privilege they have not enjoyed since 1800 when Congress took full possession of lands ceded by Maryland (68 acres) and Virginia (32 acres).  In 1846, the 32 acres were ceded back to Virginia.

          There was no recorded debate at the Constitutional Convention specifically on

the rights and privileges that District residents would enjoy.  Rather, the concern seems to have centered on the potential for abuse of power in giving Congress “exclusive Legislation in all Cases … over such District.”  For example, at the North Carolina Ratifying Convention in July 1788, William Lenoir raised the specter of a Congress making it treason to write against “the most arbitrary proceedings.”  James Iredell responded, “Where is the power given to them to do this?  They have power to define and punish piracies and felonies committed on the high seas, and offences against the law of nations.  They have no power to define any other crime whatever.”  Lenoir then declared that he meant that those punishments might be inflicted within “the ten miles square.”  Iredell rejected such fear: “Wherever they may have this district, they must possess it from authority of the state within which it lies: And that state may stipulate the conditions of the cession.  Will not such state take care of the liberties of its own people?” (emphasis added).

          Iredell’s rhetorical question, and a similar assertion by James Madison and others that the ceding state must agree to the terms of cession, is all it took for lawyers at Washington, D.C law firm Latham & Watkins to conclude, in a memorandum prepared for the DC Appleseed Center, that “ratification of the District Clause was thus based on the assumption that states ceding territory for the District would protect the fundamental liberties of their citizens, of which the right to vote was paramount.”

          The problem is that neither Maryland nor Virginia took steps to protect the fundamental liberties of their citizens residing within the ten miles square (about 8,000 in 1800).  But this Viewpoint is not concerned with the question whether voting representation in Congress for District residents is a fundamental liberty.  That question is debatable.  But there is a fundamental liberty that really is not debatable, one of which District residents have been deprived for over thirty years.  In 1976, the District’s municipal government (1) barred the registration of handguns except for retired D.C. police officers, (2) prohibited individuals from carrying a pistol without a license, even within their own homes, and (3) required that all lawfully owned firearms be kept unloaded and disassembled or trigger locked, i.e. useless.  Only Chicago has as wide-sweeping gun control ordinances.

          This month the Supreme Court will issue its opinion in District of Columbia v. Heller.  Heller applied for and was denied a registration certificate to own a handgun for the purpose of defending himself within his own home in that gun-saturated, crime-ridden “Foederal City.”  The question is whether the Second Amendment’s “right … to keep and bear arms” belongs to the individual or whether the drafters of this particular Bill of Right – in contrast to the others – intended it as a collective right, to be exercised only as a shield for state militias against federal encroachment.  The District argues that, since state militias have fallen into complete disuse, it may ban, constitutionally, all firearms outright, thus pulling the trigger on the Second Amendment (pun intended).

          If there was a man alive in 1790/1791 (when Congress accepted the land grants from Maryland and Virginia and when the Bill of Rights as we know them were ratified by the States) who held that a man did not have the right to own and carry a gun (pistol or otherwise), he was not living in America.  Or, if he was, he must have been a visitor.  One cannot read colonial and early American history without concluding that our ancestors understood this right to be fundamental.  The federal Bill of Rights came to be because the proponents of the proffered Constitution promised its opponents, who thought it lacked protections for certain basic liberties, that the first Congress would debate and vote on what the states already had, namely, a bill of rights.  Indeed, it was the Anti-Federalists who offered these amendments, with varying degrees of success, at the state ratifying conventions.  Thus, anyone who wants to know what the Bill of Rights (including the Second Amendment) means, he first should read the text and second he should read the Anti-Federalists.  When one speaks of Original Intent, when it comes to the Bill of Rights, one generally is speaking of the Anti-Federalists’ intent.  In The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to Their Constituents, published December 18, 1787, the Anti-Federalists reported that they had tried to offer fifteen propositions.  Number 7 is “that the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals….” (emphasis added).

          Federalists undoubtedly concurred that this right was fundamental.  In the 1800 presidential campaign, Jeffersonians accused President Adams of aristocratic tendencies.  One Rhode Island Federalist retorted, “The … specious cry that the Liberties of the people are in danger, and that aristocracy is creeping into our government, originates in … [Virginia].  But will New-Englandmen, with arms in their hands, ever confess that they are in danger of slavery?” (emphasis added).

          In the 1790s, the hope and ideal was that those Marylanders and Virginians along the Potomac “between the mouths of the Eastern Branch and Connogochegue” would retain all their fundamental liberties once they became official residents of “Foederal Town.”  But that hope and ideal was buried under wave after wave of deposits of heavier and heavier sediments of federal collectivism.  A reasonable scholar can question whether the Constitution Convention considered representation in Congress for District residents as a fundamental liberty; but, thanks to Dick Heller, the Supreme Court has an opportunity to excavate and bring back to life for them one of the most fundamental of fundamental liberties: the right to keep and bear arms.  And if it does, Dick Heller may get his handgun registration certificate and, one day, if necessary, defend himself or others and avoid receiving any wound in the first place that Time may or may not heal.  At least, that’s the hope and the ideal.

Jeff Turner is a Dallas lawyer and a fellow in constitutional studies at the College of St. Thomas More in Fort Worth.

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