Readers of this blog know that Stephan Kinsella long ago sacrificed not his claims to intellectual respectability or honesty. But he has truly outdone himself in this post arguing against the Supreme Court’s decision in Heller.
Mr. Kinsella, who is pleased to call himself a libertarian, attacked the decision in Lawrence and defended the decision in Kelo on the grounds that states should have the absolute power to deprive people of their lives, liberties, and property without due process of law—he holds the Fourteenth Amendment to be “squalid,” you see, so he would prefer to ignore it—and now he says that for similar reasons, the Heller case should have come out the other way.
His “reasoning,” such as it is, comes to this: because the Constitution gives the federal government limited, enumerated powers, that means Congress lacks the police power. (This much we would agree on, of course.) And yet Washington, D.C., does have such a power: “Unlike the federal government, DC can outlaw murder and rape and theft. But how can this be? After all, the federal government itself has no authority to outlaw murder. Yet DC does.” Therefore Washington, D.C., is something unique, it must be some kind of quasi-state or something. And since “the Bill of Rights was never intended to apply to the states”—remember, Kinsella would prefer to ignore the Fourteenth Amendment—“it makes no sense to apply the Bill of Rights to DC.” Kinsella does not know what D.C. is exactly; not a state exactly, but something like it, and therefore it should not have to follow the Bill of Rights which only applies (in his mind) to the federal government.
Okay, except for one little thing: the Constitution specifies that Congress shall have power to “exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may…become the Seat of the Government of the United States.” That is to say, Article I, section 8, grants Congress precisely the sort of police power over Washington, D.C., that it is denied over the states. This power is, of course, substantively identical to Congress’s power to “dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States,” (Art. IV sec. 3) which was also always understood as giving Congress authority to prohibit murder, and enact similar police power laws—subject, of course, to the limits in the Bill of Rights. Washington, D.C., is not a quasi-state; it is an institution of the federal government and therefore, even aside from Kinsella's silly crusade against the Fourteenth Amendment, it still must respect the Second Amendment.
In other words, Kinsella’s intoxicated sophism is explicitly belied by the Constitution’s text, which literally gives Congress power to exercise exclusive legislation in all cases whatsoever over Washington, D.C.,—a power which was then later limited by the Second Amendment, which declares that the right of the people to keep and bear arms shall not be infringed. Yet he completely ignores the clause giving Congress this authority...assuming he has ever heard of it.
If there was any doubt that Kinsella’s driving concern is to maximize the power of local governments to tyrannize over people without their having any rescue from federal authorities, it is this. As I have said many times before, Kinsella’s faith is what Lincoln called the “absurd” doctrine that “if one man wishes to enslave another, no third man may object.” And this he calls by the name of liberty! There appears to be no limit to the number of words in the Constitution that he is willing to ignore in the service of his perverse ideological fixations. That a man who is willing to take such extreme steps to maximize the power of government to deprive us of life, liberty, and property, would describe himself as a libertarian lowers that perversity to the very bottom.
Update: You would not think it possible for Kinsella to make more of a fool of himself, but he exceeds our expectations.
In this post, he expresses what appears to be genuine puzzlement over Washington, D.C. not being a state. No, it is not a state, Mr. Kinsella. There are only fifty states. There is in addition to these a federal district, "not exceeding ten Miles square," which "by Cession of particular States, and the acceptance of Congress, [became] the Seat of the Government of the United States." Over that district, Congress "exercise exclusive Legislation in all Cases whatsoever." That differs from a state, over which Congress does not excercise exclusive legislation in all cases whatsoever.
Yes, Congress has delegated its day-to-day responsibilities for governing D.C. to a local government, but that local government is answerable to Congress for its actions, and Congress has actually changed the form of D.C.'s local government on many occasions. Because it isn't a state. Or a "quasi-state" or a "pseudo-state" or a "semi-state" or whatever. It is a federal district which is not a state and is independent of the jurisdiction of any of the states. This is something that every first year law student understands, but Mr. Kinsella does not.
Because it is a federal district, D.C. (or rather, Congress and its subordinates in administering it) is subject to the Bill of Rights, with or without incorporation under the Fourteenth Amendment. In the words of the Institute for Justice brief which Mr. Kinsella quotes, Heller "deals with the District of Columbia, an instrument of the federal government subject to the Second Amendment directly, rather than by incorporation." As to why Heller would be a good case to discuss the privileges or immunities of citizenship, IJ discusses that on page 25 of the brief. In their view, "even though the right to bear arms applies directly to the district via the Second Amendment itself, the subsequent constitutional construction of that right as among the privileges of national citizenship necessarily serves to define the underlying right in a more meaningful and authoritative manner than any mere after-the-fact opinion of a later Congress." That is, the Second Amendment helps cast light on the nature of rights protected by the Fourteenth Amendment...the Amendment that Mr. Kinsella calls "squalid" because it protects individual liberty against the tyrannical acts of states.
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