The majority opinion in last week’s federal Appeals Court ruling striking down D.C.’s stringent gun ban has garnered considerable attention from both the media and the public. Much less attention has been given to the court’s dissenting opinion (which begins on p. 59 of this .pdf), authored by Judge Karen LeCraft Henderson. I suppose that’s not surprising, given that her opinion “lost.”
But part of the dissenting opinion should be very troubling to D.C. residents: according to Judge Henderson, they’re not “people” in the eyes of the Bill of Rights.
Judge Henderson states in her 5th footnote (p. 5 of her opinion, p. 63 of the .pdf):
[J]ust as the Tenth Amendment ties the rights reserved thereunder to “the people” of the individual “States,” thereby excluding “the people” of the District, … the Second Amendment similarly limits “the people” to those of the States….
Do you get it? According to Judge Henderson, Second and Tenth Amendments’ protections extend only to “people” living in the “States.” As D.C. is not a state, reasons Judge Henderson, District residents are not covered by those protections.
I wonder: does this reasoning extend to the other protections granted by the Bill of Rights to “the people”? In the opinion of Judge Henderson, do District residents also not have the right ”to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”? Do District residents not have the right to due process? Do they not have constitutional protection from double-jeopardy and self-incrimination? Can District residents “be held to answer for a capital, or otherwise infamous crime” without indictment from a grand jury and without representation? Can District residents “be deprived of life, liberty, or property, without due process of law”? Can District residents’ “private property be taken for public use without just compensation”? After all, the Bill of Rights explicitly guarantees those rights to “the people” or to a “person,” just as it guarantees “the right of the people to keep and bear Arms.”