Second guessing

Does the Second Amendment—the right to bear arms—apply to state and local governments? Bites’ first reaction to the question is, “Well, duh.” Sure, the second is not Bites’ favorite amendment. But it is part of the package we call the Bill of Rights—which, like background radiation and Jesus’ love, is always all around us. Right?

Wrong, according to the Sacramento City Council. The council voted last week to take sides in McDonald v. Chicago, a major gun-rights case which will be decided by the U.S. Supreme Court next year, and to argue that the Second Amendment doesn’t apply to the city of Sacramento, or to the state of California or, really, anywhere else outside of Washington, D.C. and a few other federal enclaves.

Several other cities, including Oakland, Los Angeles and San Francisco are expected join in an amicus brief in the case, which started as a lawsuit against a Chicago handgun ban. Councilman Kevin McCarty requested that Sacramento join the fray, worried that the case could undermine local gun laws, a couple of which he sponsored.

The council voted 7-2 to join the brief, with Robbie Waters and Kevin Johnson voting against.

Bites should congratulate the council for taking this vote in public. In the past, the council has kept all discussion of controversial amicus briefs private—arguing, wrongly, that these are legal matters and exempt from public hearing. Particularly galling was a decision to hold a secret vote to join an amicus brief supporting San Francisco in the California Supreme Court case that temporarily legalized gay marriage in the state. Glad to see the council has finally figured out that it really ought to make its largely symbolic political points in public.

Unfortunately, last week’s council discussion left out many of the interesting elements of the McDonald case. It’s only by historic accident that the Supreme Court has not yet considered extending the Second Amendment to the states, says Assistant City Attorney Matt Ruyak. Thanks to the post-Civil War 14th Amendment and decades of Supreme Court decisions after, it has been pretty well-established that statehouses and city halls can’t make laws that violate our rights to free speech, or a jury trial, or due process, among other rights.

The court last year threw out a strict handgun law in Washington, D.C. But that’s federal jurisdiction, and it still left gun rights’ local status in limbo. “They have kicked this can down the road a very long way,” Ruyak told Bites, noting that the Third Amendment protection against quartering soldiers in peacetime hasn’t been extended to the states either. Go figure.

Before last week’s vote, Councilman McCarty understandably tried to steer the conversation away from Con Law 101. “The question really is whether cities should have the right to craft policies to make their cities safer,” said McCarty.

But it is a little ironic to see big city liberals suddenly taking up a states’ rights argument, noted Gene Hoffman, chairman of the Calguns Foundation, a Northern California gun-rights organization. “It mirrors exactly what the racist Confederates said in the South for years,” he told Bites.

McCarty’s obviously no Dixiecrat. But this case has been unpredictably divisive. California attorney general and occasional left-winger Jerry Brown has taken the other side in McDonald, arguing that “Unless the protections of the Second Amendment extend to citizens living in the States as well as to those living in federal enclaves, California citizens could be deprived of the constitutional right to possess handguns.”

Which really wouldn’t bother Bites so much. But having to quarter troops in the Bitescave would be a real drag.