Let's talk Second Amendment.

San Francisco recently adopted a ballot measure which would ban all guns within the city environs.

San Francisco voters approve handgun, military recruiting bans
By LOUISE CHU, Associated Press Writer

Tuesday, November 8, 2005 (11-08) 23:25 PST San Francisco (AP) --

Voters approved ballot measures to ban handguns in San Francisco and urge the city's public high schools and college campuses to keep out military recruiters Tuesday.

With 100 percent of San Francisco precincts reporting, 58 percent of voters backed the proposed gun ban while 42 percent opposed it.

Measure H prohibits the manufacture and sale of all firearms and ammunition in the city, and make it illegal for residents to keep handguns in their homes or businesses.

Only two other major U.S. cities -- Washington and Chicago -- have implemented such sweeping handgun bans.
Supervisor Chris Daly, who proposed the measure, said the victory showed that "San Francisco voters support sensible gun control."

Citing statistics that show most homicides in the city involve handguns, Daly said "every life that's saved with Proposition H is a big win."

Although law enforcement, security guards and others who require weapons for work are exempt from the measure, current handgun owners would have to surrender their firearms by April.

A coalition led by the National Rifle Association has said it plans to challenge the initiative in court, arguing that cities do not have the authority to regulate firearms under California law.

Davey Jones, chairman of the Committee to Oppose Handgun Ban, said a recent wave of gun violence in the city may have hurt his campaign, but opponents believe the right to possess handguns is necessary for self-defense.

"We focused our message to seniors and to women and to the gay community," Jones said. "Of course we're disappointed. We believe that we did not get the message out."

The military recruitment initiative also won with 60 percent in favor and 40 percent against.

Measure I, dubbed "College Not Combat," opposes the presence of military recruiters at public high schools and colleges. However, it would not ban the armed forces from seeking enlistees at city campuses, since that would put schools at risk of losing federal funding.

Instead, Proposition I encourages city officials and university administrators to exclude recruiters and create scholarships and training programs that would reduce the military's appeal to young adults.




Wow! That's pretty dramatic. But note an important passage in that article:

A coalition led by the National Rifle Association has said it plans to challenge the initiative in court, arguing that cities do not have the authority to regulate firearms under California law.

What? California law? Why not the Second Amendment? There can't be a more stringent restriction on "the right to keep and bear arms" than "thou shalt not keep nor bear arms.

Maybe the NRA saw an easy road with the California law. Maybe that issue is a slam-dunk, and they thought that argument sufficient. I haven't read their brief, so I'm not sure.

However, I have a theory (thirdleg, if you're reading this, I'm about to piss you off)....

I think the NRA is scared to raise the Constitutional issue.

There are two basic reasons why they could lose on this issue:

The first is that the Second Amendment does not bind states (or cities), because it has never been incorporated into the 14th Amendment "privileges and immunities" language. The Constitution binds the Federal government. The rights provided in the Bill of Rights and the Constitution limit the actions of the Federal government.

The states are separate and independent government bodies. Absent the Fourteenth Amendment, the restrictions of the Constitution do not apply to the states.

The Fourteenth Amendment prohibits states from interfering with the "privileges and immunities" of U.S. Citizenship. This has been held to include certain portions of the Bill of Rights...Never the Second Amendment.

Therefore, states (and cities) are not bound by the Second Amendment.

The NRA would be apoplectic if they brought a case to court, and lost on this theory, because suddenly there would be a precendential ruling affirming it. However, that's nothing compared to the other argument.

There are two competing theories of interpretating the Second Amendment: The "individual rights" and the "states rights" models. Under the states rights model (which the NRA justifiably loathes), the right to bear arms is solely related to the establishments of organized militia which are themselves, arguably, under the control of the states (or, in certain circumstances, the Federal government!) Therefore, the right to bear arms is held by the states in order to arm its militia. If the state chooses to have a poorly armed militia (or no militia at all), then it can restrict or eliminate gun ownership.

There is some textual support for this reading. The Second Amendment, alone among the Bill of Rights, has a preamble: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Why include that language, if not to limit the Amendment's application? If the framers wanted it to be "just another right", they could have included it in the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, or infringing the right of the people to bear arms and to petition the government for a redress of grievances.

Instead, they separated it out, with a preamble. The preamble must have some legal effect. What could that legal effect possibly be if not to limit the scope of the right to bear arms?