Capital Of Denial

This feature appears in the October ‘17 issue of NRA America’s 1st Freedom, one of the official journals of the National Rifle Association.  

In late July, the U.S. Court of Appeals struck down the District of Columbia’s requirement that citizens give a good reason to carry a handgun in public. It’s the third court loss in nine years for Washington, D.C.: Heller struck down the District’s handgun ban in 2008, and they lost again in 2014, when the ban on carrying firearms was also blocked

As D.C. considers whether or not to appeal, one has to ask: Why is the city that houses the Constitution so determined to deny constitutional rights?

Writing to Patrick Henry on July 3, 1776, John Adams offered some customarily blunt words for those  who were still caviling about the Declaration of Independence. “The dons, the bashaws, the grandees, the patricians, the sachems, the nabobs—call them by what names you please,” Adams recorded, continue to “sigh and groan and fret, and sometimes stamp and foam and curse.” But, he added with an unmistakable relish, they do so “in vain,” for “the decree is gone forth, and it cannot be recalled, that a more equal liberty than has prevailed in other parts of the earth must be established in America.” 

A day after this letter was sent, the Continental Congress adopted the document formally, and, in so doing, struck a mighty blow for human freedom. How loud must the gnashing of teeth have been that evening!

If Adams had presumed that the sighing, groaning and fretting would be a transient and particular feature, he could well have been forgiven. So, too, would he have been excused for suspecting that the most tenacious and recalcitrant of the reform’s dissenters would live abroad. It was natural that the King of England, Empress Katherine of Russia and the diligent censors of Vienna would view a shot heard around the world with conscientious suspicion. But Americans themselves? It could surely not be long before the stragglers were convinced, converted and assimilated to the charms of a liberty that had no peer.

Or could it? We are now separated from that moment by 241 years, and yet to look across today’s landscape is to discover a new complement of “grandees,” “patricians” and “nabobs,” who are as insistent in their foaming, stamping and cursing aloud as ever were their forebears. These fretters live and work not in London, St. Petersburg or Austria, but within this nation’s capital, and they reside not on the fringes of society, but within many of the vital roles of state. They are police chiefs, attorneys general, mayors and members of Congress; they sit in government, in the press and on K street; they appear on the morning shows, write op-eds in the newspapers and make dull speeches in the public square. And, together, they are in open rebellion against the founding and its precepts.

One might reasonably wonder if there is something in the water—something, perhaps, that makes D.C.’s government believe itself to be exempt from the axioms upon which America is built.

It is these modern “bashaws” that prompted the U.S. Supreme Court to author the seminal Heller decision, and thereby remind us that the Constitution is not a suggestion, but (to borrow Adams’ description of that document’s father) “a decree” that has “gone forth.” It is these contemporary “sachems” who have been told time and time again that their rules are verboten, and need promptly to be changed. It is these present-day “dons” who continue to raise the middle finger to their disfavored parts of the Bill of Rights. For some, it will always be 1775.

Ostensibly, the tide has turned in Washington, D.C. In the last 10 years, the city has been stripped of its handgun ban, its one-gun-per-month rule, its re-registration regime, its local-firearms-law test and its in-person registration requirement. In addition, courts at a variety of levels have found that the city’s concealed-carry requirements amount to an effective prohibition and are thus unconstitutional.

And yet, despite these periodic rebukes, the powers-that-be in D.C. have routinely failed to take the hint. Indeed, so insistent has the city been in its defiance that one might reasonably wonder if there is something in the water—something, perhaps, that makes its government believe itself to be exempt from the axioms upon which America is built.

Writing in A View of the Constitution, the jurist William Rawle suggested that it was the provinces that required watching closely. “No clause in the Constitution,” he proposed in 1829, “could by any rule of construction be conceived to give to Congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature.” How wrong he was! It is not Arkansas that is perpetually circumventing the guidelines, nor is it Montana nor Texas nor Maine. It is Washington, D.C.—home of the White House, of Congress and of the Supreme Court. At the end of Pennsylvania Avenue, in the heart of the National Archives, lives the triumvirate of American scripture—the Constitution, the Bill of Rights and the Declaration that kicked it all off. Is the building in which they reside difficult to get to, perhaps? Has the glass above the parchment grown foggy? Are visitors limited in number? If not, one has to inquire how it can be that the place is so routinely intractable. Is nobody there embarrassed?

What can be done? By now, one would have expected that the D.C. officials would be tired of losing in court. Sadly, though, no such release has been forthcoming. In July, the U.S. Court of Appeals joined a host of lower courts in enjoining the district’s “proper reason” law, which requires applicants for carry permits to demonstrate that they have a “proper reason to fear injury.” “The resulting decision,” wrote the majority, “rests on a rule so narrow that good-reason laws seem almost uniquely designed to defy it: that the law-abiding citizen’s right to bear common arms must enable the typical citizen to carry a gun.”

In response, the city did what it always does: It reaffirmed its commitment to the ban, which it described as “common sense,” and promised more “uniquely defined” rules. ’Twas ever thus. Three times now, the capital has been told that it cannot restrict the protection of the Bill of Rights to those citizens it prefers. Three times it has indicated that it will continue to do just that—and in whatever way necessary. Before Heller, Washington banned all handguns. That was struck down. In reply, Washington banned the public carrying of firearms. That, too, was struck down. In reply to that, the city established carry rules so narrow as to practically reinstate the dissolved ban. For this, it was told to desist—and in no uncertain terms. Writing for the majority in enjoining the “proper reason” regulation, Judge Thomas B. Griffith observed that he was “bound to leave the District as much space to regulate as the Constitution allows—but no more,” and affirmed that he had done “little more than trace the boundaries laid in 1791 and flagged in Heller I.” And still the nabobs persisted. 

Three times now, the capital has been told that it cannot restrict the protection of the Bill of Rights to those citizens it prefers. Three times it has indicated that it will continue to do just that—and in whatever way necessary.

Griffith was right to stick to his narrow judicial role, intervening only to prevent the city from taking actions that have been denied to it by the law. The rest of us, however, suffer under no such professional circumscription, and might well shout aloud, “What the hell is D.C. playing at?” For all the talk of “moderation” and “common sense,” the rule that Washington is now defending is utterly nonsensical. Per D.C.’s regulations, citizens within its limits may only obtain a concealed-carry permit if they can demonstrate a “proper reason to fear injury,” which in practice means that before they can even start the long wait for a license, applicants are obliged to show that they have already been threatened. What sort of sense, one must ask, does that make? Put bluntly, the District is incurring legal expenses and wasting public time in order to deprive free human beings of their constitutional rights until such time as they have already managed to survive a threat. In what other context would such an approach be acceptable?

What will it take for Washington to rejoin the United States? At this stage, it seems that the only steady relief can come from the Supreme Court finally finding its voice. Since Heller was decided almost a decade ago, the nine justices have been quiet on the question of gun rights outside of the home—so quiet, in fact, that Justices Clarence Thomas and Neil Gorsuch and former Justice Antonin Scalia have pleaded with their colleagues to refrain from treating the Second Amendment as a “second-class right.” Until such time as they prevail, D.C. will continue on its current path—flouting, snipping, bending and reading in bad faith every ruling. Will they be permitted to do so in perpetuity?

C.S. Lewis once observed that those who “torment us ... with the approval of their own conscience” are the most dangerous actors of all, for unlike the robber baron, their cupidity is never satiated. Such characters, hostile to the republic’s charter, dominate our capital city. There is no excuse for backsliding anywhere in America; not in Illinois, not in New Jersey, not in California or beyond. But for the place where Madison and Lincoln sat and worked to have become a place in which the Constitution is selectively upheld is the sickest of sick jokes.

Symbolism matters, and habits spread easily. What is done in the locus of power becomes a template for the outskirts. There is a sickness in the capital. It cannot be permitted to fester.