The 2nd Amendment and Our Advice and Consent

Lost last week amidst a new plan to get budget autonomy and Obama tanking in the debate was an interesting piece in the Washington Times about another challenge to the District’s gun laws. This case mainly focuses on the 2nd Amendment but citizens of the District shouldn’t lose sight of the fact that this case is also emblematic of our disenfranchisement. It’s a prime example of one branch of government clearly not deriving its power from the consent of the people. This case is about a law created by the District of Columbia with the goal of enhancing and preserving public safety yet the process that this case will follow through the court system will leave us completely shut out of the process.

As this case works its way through the federal court system it will be heard by federal judges that District citizens had no say in their appointment. Under the Home Rule Act there is a Judicial Nominations Commission where both our Delegate in Congress and other players have a say in recommending judges but it’s not the same as having two U.S. Senators.

During high school I had the privilege of being an intern in Senator Paul Wellstone’s office and he often said that he was a bit lost in the Senate until Mike Epstein told him the two most important words a Senator needed to know: “I Object.” With those two words any US Senator can hold up the nomination of a judge or other presidential appointee. That is real power. That is the power and equality we should seek. That is the power that every state has whether it’s sparsely populated Wyoming or the heavily populated California. The US Senate is an attempt, albeit quite imperfect, at being a great equalizer among the states. So as this case weaves its way through the federal court system keep in mind that from the lower courts up to the Supreme Court we in the District will have had no ability to question the justice’s qualifications for their appointment.

While we often talk about “taxation without representation” we rarely go into details about what full and equal representation means. As it relates to the judicial branch of government we are completely neutered and shut off. Since the founding of the country there have been 112 Justices on the Supreme Court, none of which we’ve had a say in. The Federal District Court for the District of Columbia has had 85 judges all confirmed to oversee law and order in our city (with many federal cases) none of which have been confirmed with the advice and consent of two Senators elected by the people in the District of Columbia. And even worse, our own local courts are under the same federal control so that local judges are appointed by the President and confirmed by the Senate, not by the mayor and the Council.

As gun rights cases over the coming years make their way through local and federal courts remember that this is not just about the 2nd Amendment to the Constitution it’s also about the problem that Article I, Section 8 created. It’s about the third branch of government that has not derived its power from the consent of the people which is contrary to the very principles that inspired the Declaration of Independence and the drafting of the Constitution. It’s not just about ‘taxation without representation’ it’s about having a court system that derives its power from the advice and consent of the people it sits in judgment of.

Josh Burch

Twitter: @JBurchDC

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