Comments on: Cheney disagrees in D.C. gun case

By: Roger Friedman

Roger Friedman — Tue, 12 Feb 2008 13:44:30 +0000

To Saranos #12: Already you can see lawyers perserving points related to carrying a gun enhancements or crimes with gun possession elements — those that do not require using the gun or a felony conviction — on 2nd amendment grounds.

By: Joe Richer

Joe Richer — Tue, 12 Feb 2008 12:53:15 +0000

(Responding to Peter Goldberger 9:27 pm) Cheney has consistently advanced the view that the VP has a unique Constitutional status, part Legislative, part Executive. His office has argued that as a part of the Legislative branch, the VP’s office is not part of the Executive subject to Executive Orders concerning secrecy and security. Surely Mr. Cheney is sincerely devoted to the 2d Amendment, but he is also consciously protecting the unique Constitutional position of the VP. He is upholding his oath of office.

By: Daniel Thomas

Daniel Thomas — Tue, 12 Feb 2008 01:29:08 +0000

Peter:

Yes. No.

By: Peter Goldberger

Peter Goldberger — Mon, 11 Feb 2008 02:27:18 +0000

Has any previous Vice President taken the position that he is an officer in the Legislative Branch like this (and in Cheney’s previous position regarding White House e-mails)? Is there any constitutional merit to it?

By: Michael Saranos

Michael Saranos — Mon, 11 Feb 2008 01:16:09 +0000

The core issue here isn’t cession or DCs status as a Federal entity or whatever, it’s the 2nd Amendment and how much or little the Government may infringe on that right.

No matter how SCOTUS rules, the basis for the ruling applies nationwide. This is what is scaring many politicians who talk out of the sides of their mouths pandering to the gun owners for votes yet don’t want to lose the power to ban guns at their whim.

If SCOTUS doesn’t rule broadly with direct effect on things like 922 (o), you can bet that before the echo of the gavel fades away, there will be challenges based on Heller against every gun ban in the nation. If SCOTUS wants to deal with a ton of these cases comeing to them, they will only declare the DC ban unConstitutional. If they want to save the tax payers a ton of money and everyone a lot of grief, they will rule with broad effect cutting down a lot of stuff with one sweep.

Either way, a lot of the gun laws are going away and real soon. Our nation will be far better off for it too.

Mike

By: Roger Friedman

Roger Friedman — Sun, 10 Feb 2008 23:13:53 +0000

Cession doesn’t really work because Maryland does not want the duty to handle police, fire, garbage, street repair, etc. for a gigantic area which is exempt from taxation because it belongs to the US government. Already there are complaints around the country about the impact of government property and facilities on the tax base which are not made up by federal impact payments. There have been proposals to cede all but a federal kernel of DC, but defining that kernel is difficult in practice. What is so wrong about allowing DC the same number of senators and representatives and electors to which it would be entitled if it were a state? The greatest political inequalities in the US are due to the overrepresentation of states with low population. And this overrepresentation is perpetuated by an amendment process that involves an even more egregiously unequal.

By: Andrew Hyman

Andrew Hyman — Sun, 10 Feb 2008 19:00:38 +0000

FYI, today I wrote a blog post about this, here.

By: Andrew Hyman

Andrew Hyman — Sun, 10 Feb 2008 04:00:06 +0000

After my initial two posts above, I read some more about this provision of the Constitution (i.e. the provision granting to Congress the power of “exclusive legislation” over the nation’s capital). So, I feel obliged to mention that SCOTUS held in DC v. Thompson, 346 U.S. 100 (1953), that “it is clear from the history of the provision that the word ‘exclusive’ was employed to eliminate any possibility that the legislative power of Congress over the District was to be concurrent with that of the CEDING states” (emphasis added). But this seems like an overly narrow interpretation of the word “exclusive,” and so I disagree with that statement by the Court in DC v. Thompson.

In Federalist 32, Alexander Hamilton said very clearly that this provision is one “where the Constitution in express terms granted an exclusive authority to the Union,” and so this provision barred a concurrent power with EACH AND EVERY ONE of the states, rather than just the with the CEDING states. Therefore, the word “exclusive” was meant to be much more comprehensive than SCOTUS has held, and I don’t see any reason why it should be completely inapplicable to the municipal legislature in the nationâ€™s capital.

Yes, home rule is constitutional; in Federalist 43, Madison did anticipate that “a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed” for the nationâ€™s capital. Thus, I would not take the extreme position taken by St. George Tucker in 1803: “If the maxim be sound, that a delegated authority cannot be transferred to another to exercise, the project here spoken of [i.e. home rule] will probably never take effect.” But still, it doesnâ€™t seem right to limit the word “exclusive” in the Constitution so as to allow a complete delegation of legislative authority even over the most momentous subjects affecting longstanding individual rights.

By: Andrew Hyman

Andrew Hyman — Sat, 09 Feb 2008 21:38:35 +0000

I think they still apply. Giving Maryland sovereignty over the whole district, including the White House and the Capitol, would give too much power to Maryland. Congress can do so without a constitutional amendment, but it would be a mistake. And if Congress cedes 99% back to MAryland, then the remaining 1% could potentially have three votes in the electoral college, which would also be a mistake.

By: Kent Scheidegger

Kent Scheidegger — Sat, 09 Feb 2008 21:03:10 +0000

Andrew, your amendment would solve the representation problem, but I would go the whole hog and cede it back to Maryland entirely. The reasons for having a separate federal district in 1787 no longer apply, and the Necessary and Proper Clause is now understood to be more than sufficient to enable the federal government to protect its operations from local interference. The portion south of the Potomac was ceded back to Virginia, and there is no reason the northern part can’t be ceded back as well. It wouldn’t require a constitutional amendment.