Heller and the States

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In response to my party-pooping comments about Heller, the D.C. gun case, Lincoln Idolator and Prim & Proper “Libertarian” Tim Sandefur turns up his nose at Gutzman’s idea that D.C. is like a “pseudo-state” and thus is not subject to limitations in the Bill of Rights. The argument is that if D.C. is the entity that is legislating, it is not Congress legislating, therefore limits on Congressional power do not apply; for this reason D.C. is more like a quasi- or pseudo-state.

Curiously, as I noted in The Institute for Justice on the Wonderful Congress of 1866, in the April 2008 issue of IJ’s Liberty & Law, there appears Robert McNamara’s article “Gun Ban Case Triggers IJ Brief For Individual Rights” (IJ’s amicus brief in the Heller gun-rights case). In this article, McNamara rhapsodizes about the wonderful Fourteenth Amendment. One of his comments is very interesting for our present purposes:

To us, though, the case presented an excellent opportunity to argue in favor of revitalizing the Privileges or Immunities Clause of the 14th Amendment of the Constitution.

Now why, I ask, would the Heller case be a good case to revitalize the Privileges or Immunities Clause? That clause, after all, limits what states can do (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States“). But this case was about D.C. …. which Mr. Sandefur authoritatively assures us is not a state.

12:44 am on July 8, 2008