Gunning Down the Constitution
When the City of Chicago banned all handguns recently, countless Americans rightly cried foul. When it looked like the Supreme Court might overturn the ban, gun-rights advocates cheered the decision. But while their heart is in the right place, their enthusiasm is not, as what gun-rights advocates are really cheering is the federal government assuming even more power.
The Bill of Rights was never intended to be a list of individual rights, but a list of things the federal government could not do to the states. Patrick Henry and his anti-federalist friends did not want an all-powerful “national” government and insisted the Bill of Rights be added to the Constitution in order to make crystal clear that the federal government’s powers were few, limited, and only those delegated to it by the states. The rights to free speech, freedom of religion, and to keep and bear arms were rights the federal government could never take away from the states, allowing states to regulate speech, religion — and yes, firearms — as each saw fit. Today, the Founders would declare federal gun legislation like the Brady Bill to be unconstitutional, pointing to the 2nd, 9th, and 10th amendments. The Founders also would have declared Chicago’s gun ban constitutional (albeit stupid), also pointing to the 9th and 10th amendments. The 2nd amendment does not apply to the Chicago gun ban because the federal government is not involved — nor should it be.
Constitutional historian Kevin Gutzman put the Founders intentions into perspective during an interview with radio host Mike Church: “when we have a Second Amendment, essentially what that means is that the federal government is to have nothing to do with your ownership and use of weapons. But that doesn’t mean that nobody is able to regulate your ownership and use of weapons. If neither the federal government nor the states can regulate ownership of weapons, are we saying that retarded people and insane people and felons and children can all own weapons? Clearly some level of government has to be able to regulate the use and possession of firearms.”
So how can the Supreme Court overturn Chicago’s ridiculous, yet constitutional law using the 2nd amendment? Also, why should conservatives — typically champions for gun rights — be opposed to this court decision? Because this decision would trample the most important right of all — that of the states to limit the power of the federal government.
Reporting on the Chicago controversy, a Washington Times headline this week read, “Gun rights lawyer gives hope to liberal causes: 14th Amendment argument opens to gay rights, abortion.” Using what’s called the “incorporation doctrine,” the Supreme Court has argued that the 14th Amendment, which was meant to protect the basic rights of former slaves after the War for Southern Independence, magically turned the Bill of Rights into a list of individual rights. If this is true, as the Supreme Court is about to declare once again in the Chicago case, then federal law trumps state law anytime the court sees fit, completely ignoring the Bill of Rights’ intended purpose of limiting federal authority. What some consider a small victory for gun rights is actually a grand defeat for limited government. If Patrick Henry were alive, he would likely be reaching for his musket.
What happens when the court decides that gay marriage is a “right,” or that healthcare is a “right,” two concepts many liberal Democrats already subscribe to? States will be powerless to stop the invention of these and other new “rights” and completely at the mercy of federal judges. Reported the Washington Post: “Justice Stephen Breyer needled the majority about its rather situational view of federalism when it comes to ‘incorporating’ the Second Amendment to make it binding on states rather than just the federal government. ‘Without incorporation, it’s decided by state legislatures,’ he said. ‘With, it’s decided by federal judges.”
In his book Original Intentions: On the Making and Ratification of the United States Constitution, conservative author Mel Bradford warned against embracing unconstitutional court decisions based on situational whims: “Legitimate change in the Constitution can only be made by amendment-not by the will of the High Court, its well-meaning, teleocratic misuse of its originally narrow and specific role within the law. For if it does not keep the law, who will? And if the law itself is personalized or politicized at its source, who among us is secure?”
I’m not a constitutional scholar. In fact, I’m not a scholar of any kind. My observations, whether on talk radio or in my columns, are the thoughts of an average American with an average education attempting to deduce simple truths about our nation and its government. But one need not be an expert of any sort to recognize that our federal government has long trended toward increased centralization, sometimes in the name of the Constitution itself. As Bradford noted, if the federal government is to be the sole arbiter of its own power then there really are no limits to that power, and those who still believe in the Founders’ constitution should not cheer its destruction by championing increased centralization over local control, federal dictates over states’ rights and “conservative” victories that are not.
“I’m not a constitutional scholar.”
Pretty much sums it up right there.
“…the right of the People(individuals) to bear arms, shall not be infringed” -2nd Amendment
The fact remains that the term “marriage” does not occur in the Constitution of the United States. There is technically no “right” for any couple, Gay or Straight, to get married, at least from the federal government’s standpoint.
However, the federal government has complicated this issue by providing most of the legal benefits, protections, and responsibilities of marriage … 1,138 of them at last count, according to the Government Accounting Office.
For those who suggest that the issue of marriage is best left up to the states, it’s important to remember that the federal government has a vested interest in married couples for the purposes of income taxes and Social Security benefits. From the fed’s point of view, it wouldn’t do for a couple to be considered married in one state, then magically “UN-married” once they decide to move somewhere else.
When you consider that the only real difference between Gay and Straight couples is the sexual orientation of the two people in the relationship, there is simply no constitutional justification for denying law-abiding, taxpaying Gay couples the exactly same legal benefits that Straight couples have always taken for granted.
Jack,
I sometimes agree with you, sometimes don’t, but I almost always respect your opinion. This time, I think you’re off the reservation. So long as the Federal Government is using Constitutional provisions to expand freedom, we should applaud it. After all, that is why we have a Federal Government. You may be right that the founders’ intent was to keep the Federal government from taking our guns, but to allow the States and local governments to trample the individual right to protection if they wanted. I doubt that, though. If it were true, you wouldn’t have been protected from city police holding without charging you, from a county sheriff searching your home without a warrant, or from your governor from quartering militia in your home.
However, even if you are right about the original intent, you’re wrong about what the Constitution says today. The 14th Amendment says “No State shall…deprive any person of life, liberty, or property, without due process of law.” That liberty and property includes guns and the rights to use them. It does leave the right of a state to restrict felons or the criminally insane from gun ownership or use, so long as due process is observed.
I should remind you of the second half of Goldwater’s famous quote: “Moderation in the defense of justice is no virtue.”
The govornment shoulldn’t be allowed to regulate marriage anyway, because it is a religous act, futhermore the fedreral government should be allowed to PROTECT the states from denying our freedoms!
It seems to me that the 10th Amendment guarantees that the States may make laws governing their citizens, provided those laws would not restrict rights which are enumerated in the Constitution:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Gun ownership happens to be one of those rights guaranteed in the Constitution, so Federal law would supersede State law in this case:
“…the right of the people to keep and bear Arms, shall not be infringed.”
The subject of marriage is not addressed in the Constitution, therefore the States may address that issue any way they wish.
“The Bill of Rights was never intended to be a list of individual rights, but a list of things the federal government could not do to the states.”
So my state can establish a religion? Prohibit my free exercise of religion? Quarter troops in my house? Force me to testify against myself? Try me as many times as it takes to convict me? Subject me to cruel and unusual punishment? Control the press located within its borders?
I believe states should be a balance against the federal government, but I don’t think Mr. Henry would have argued that the Bill of Rights did not apply to the states as well as what has become the State.
Mr. Grimes,
Yes, as originally understood, the Bill of Rights left it to each state to maintain its established religion. My own state of Connecticut, for example, kept the Puritan church that was the reason for Connecticut’s very existence until 1819, and no one ever thought that this violated the Establishment Clause. Why? Because it didn’t violate the Establishment Clause. The reason for the Establishment Clause was to keep Congress from doing anything “respecting an establishment of religion” — either establishing a national church or disestablishing a state church — as even John Marshall had to concede. (_Barron v. Baltimore_, 1833)
The Preamble to the Bill of Rights says, in part, “The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution….”
The “its” refers to the Constitution’s powers, and “the Government” refers to the Federal Government. In other words, the purpose of the federal Bill of Rights is to clarify the limits of Federal Government power. Its purpose is *not* to limit the state governments’ powers IN ANY WAY.
Rep. James Madison proposed an amendment in the First Congress that would have given federal judges veto power over state laws related to speech, press, and religion. That was the only one of his amendment proposals that Congress did not adopt. Why? Because the purpose of the Bill of Rights was to limit the Federal Government’s powers, not to give it additional power vis-a-vis the states.
The Incorporation Doctrine is a bogus left-wing invention that has been used for almost uniformly pernicious purposes since it saw the light of day 7 decades ago. Under the Incorporation Doctrine (the idea that federal courts can use twisted readings of their favorite Bill of Rights provisions against the states), federal courts have made flag burning a right, banned capital punishment in general, banned capital punishment of child rapists, banned school prayer, excluded certain evidence against criminal defendants, banned Nativity Scenes from public places, et cetera. And now you want them to apply this same unconstitutional doctrine to a new area of law.
Gun ownership will never be unregulated. Retarded people, insane people, blind people, felons, children, and various others will not be allowed to possess weapons. People who are allowed to possess weapons will never be allowed to take them anywhere they want anytime they want. The issue is who decides what the regulations will be.
Since the founding of Virginia in 1607, state authorities have had control over such questions. But you want them to be decided by unelected, unaccountable federal judges — the same ones who ban school prayer and Nativity Scenes and capital punishment of child rapists and so on. The model of government you are advocating is un-American.
But I predict that you are going to get your way. Federal Courts rarely refuse to take states’ power for themselves.
“The Bill of Rights was never intended to be a list of individual rights, but a list of things the federal government could not do to the states.”
If the bill of rights was never intended to be a list of individual rights, then why did the founding fathers use the following language?
“or the right of the people”
“the right of the people to keep and bear Arms”
“without the consent of the Owner”
“right of the people to be secure in their persons”
“the persons or things to be seized”
“No person shall be held”
“to be a witness against himself”
“nor shall private property be taken for public use”
“the accused shall enjoy the right”
“to be confronted with the witnesses against him”
“witnesses in his favor”
“his defence”
“retained by the people”
PEOPLE. OWNER. PERSONS. HIMSELF. PRIVATE PROPERTY. ACCUSED. HIM. HIS.
Did the founding fathers choose this language to represent states rights?
Your contention that the “Bill of Rights” was never intended to be a list of individual rights is laughable.
The founding fathers sought to escape the tyranny of oppressive government by investing ultimate power in the people. Do you, or the state, have a greater interest in protecting your individual liberty.
If the federal government can’t take away your rights, but the state can, are you really free?
The “bill of rights” was written to protect the individual from state tyranny. It mandates that the federal government must protect you from any state’s attempt to deprive you of your god given rights. Should a state make a law that denies you your individual liberty, the federal government, via the supreme court, must strike down that law as “unconstitutional”.
You’re going a bit wobbly on us, Jack.
Next time, be sure to put brain in gear before engaging fingers to keyboard.
Mr. Gutzman,
It’s not my way. I understand that the Constitution was originally restricting the federal government. I think it was unfortunate that Mr. Hunter asserted it restricted what the federal government could do with regard to the states rather than to the people.
And, my own state’s Constitution assure me of my rights regarding my state. http://www.ncga.state.nc.us/Legislation/constitution/article1.html
NC’s Constitution, in fact, prohibits succession and asserts that :”Every citizen of this State owes paramount allegiance to the Constitution and government of the United States, and no law or ordinance of the State in contravention or subversion thereof can have any binding force.”
So, even by the state’s rights argument, and the principle of Federalism, my state can not pass a law that violates the U.S. Constitution.
Some may think this regrettable. I was born and bred in the South, and I was formed by writers like Mel Bradford, However:
1) I blame my own region for the rapid destruction of state’s rights. I am not really a Jaffa fan, but the South had no problem giving the U.S. government extraordinary power when it came to fugitive slaves, and, corrupted as I may be by my place and time, and call it natural rights or something else, but I do not think any state has the right to consider any person property.
2) Above I say “rapid destruction of state’s rights.” I do so because it would have occurred anyway. I’m one of those people who believes in original sin and imperfectability. So, basically, the Right offers a slower road to Hell-in-a-Handbasket, but just as sure and certain a one.
The Right needs to do is stop fighting lost battles, like trying to restore the same sort of Federalism we used to have–as my state’s Constitution makes clear, this is pointless. It’s like trying to put Humpty-Dumpty back together, close Pandora’s Box and get the genie back in the bottle.
What we need to do is find ways to restore principles and practices (habits of mind and habits of governing) that can stop the rupturing.
I think of it like this. I have peripheral neurpoathy from a B-12 deficiency that was caused by decades of undiagnosed celiacs disease. Nothing can be done about that. However, by not eating gluten and by taking supplements, it doesn’t have to get worse.
Wow! Looks like Jack really touched a nerve with this one, but I think he’s right: the US Bill of Rights was originally intended to limit the power of the federal government over the people–NOT the powers of the states over the people.
As Gutzman pointed out, several states actually continued to maintain established churches into the 19th century. He also neglected to mention the other obvious fact: until the 13th Amendment, states had the power to permit slavery. If that’s not a limitation of the rights of the individual, I don’t know whate is.
Again, as Gutzman points out, the 14th Amendment clearly deprived the states of the right to deny freedmen the vote as well as certain other rights, but debate has raged among constitutional scholars as to whether it was meant to extend any other federal rights to individuals over the objections of the states. Liberals have almost always said yes, while conservatives (like Scalia) have almost always said no. And it’s obvious why: the expansive interpretation of the 14th Amendment was instrumental in abolishing several other state prerogatives, such as allowing prayer in school.
So, if I understand him correctly, I think Jack’s message is: beware of knee-jerk reactions based on culture-war positions that set dangerous precedents which may come back to haunt us down the road.
seamus_padraig writes: “Again, as Gutzman points out, the 14th Amendment clearly deprived the states of the right to deny freedmen the vote as well as certain other rights, but debate has raged among constitutional scholars as to whether it was meant to extend any other federal rights to individuals over the objections of the states.”
I would quickly get in way over my head if I tried to debate the 14th Amendment. It’s been over a decade since I did any serious reading around the issue. Though I do remember finding Raoul Berger convincing, for example, I doubt I could do more than generalize his points these days.
However, in the case of my state’s constitution it’s beside the point, and some of this is the same as saying “We didn’t used to have presidential term limits, or an income tax or popular election of U.S. Senators.”
“[K]nee-jerk reactions based on culture-war positions that set dangerous precedents which may come back to haunt us down the road,” are surely to be cautioned against, but the knee that has jerked is sometimes like the bell that has been rung. We need to learn from it, yes; we need to strive to avoid it, absolutely, but there are some things we also have to learn to live with.
First of all, the idea that the BofR,pre 14th Amendment, did not apply to the States is not only NOT laughable, but is basic Constitutional history and law. The whole impetus behind the BofR was the fear of a Federal govt out control. It was insisted on by anti Federalists and pro Constitution moderates. The States were not implicated in it at all. A State was only restrained in the original Const to the extent it was explicitly mentioned (as in “No State.. . ” Art. I, Section 10, Cl 1). States DID maintain established churches long after the Bof R was ratified; Massachusetts into the 1830′s. And a unanimous Supreme Court, in the early 19th century, per CJ John Marshall, held that the BofR (specifically, the Just Compensation Clause) did not apply to the States. Baron v. Baltimore. The ruling was expected and uncontroversial.
Portions of the BofR are now held to apply to the States through the 14th Amend due process clause.. Fairly early on, in the late 19th Century, the Just Compensation clause of the 5th Amend was held to now did apply to the States. Freedom of Speech, in the 1920′s. Freedom of religion in the 1940s. Amd most of the criminal law and procedure provisions under the Warren Court in the 1960′s, under the “Selective Incorporation” doctrine.
Without getting into the rights or wrongs of incorporation in general, the 2nd Amendment presents an interesting case. The Amendment reads:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Despite what the SCOTUS said in Heller, it seems pretty clear that the Amendment was intended (again, by the anti Federalists and moderate Federalists-like Madison) to protect the State militias from Federal interference. Fear of standing armies was a big deal in the late 18th century. But there was a division of opinion on the role of militias as relating to the Revolutionary War. Simplifying grossly, the “Federalist”position was that the Continental regulars had won the war, that the State militias had performed horribly, and that the new Federal govt needed a standing army. The “anti Federalist” view was that the militia had done just fine, that no standing army was needed, and that creating one would be creating a danger. The truth was somewhere in between, or, to put it more accurately, the Feds were probalby right about the Revol War, but tha anti Feds were right about the danger of a standing army. Congress, of course, was given (with some restrictions) the authority to raise a standing army under the Const. The anti Feds were afraid that the new Fed govt would try to outlaw, disband, or interfere with the State militias. And that’s why the Second Amendment was added. It had nothing to do with hunting or individual self defense or crime fighting or even a right of revolution. It was all about protecting these popular and empowering State institutions (organized at the local level) from Federal interference.
Most State constitutions had provisions making a militia a permanent part of the State establishment. Only 1 or 2 of these,perhaps, were framed in terms of the individual. Also, to “bear arms” meant to carry them in war, not for any other reason (self defense, hunting, hobby).
So, while all of the Bill of Rights was aimed at the Fed, the Second Amendment is different in that it was specifcally designed to govern Federal/State relations. Much like the 10th Amendment. The other provisions of the BofR, for the most part,can be pretty easily “translated” from the Federal to the State level. If Congress can’t establish a religion or abridge the free exercize thereof, or freedom of speech,etc., then a State can’t either. If a Federal agent needs a warrant, so does a State agent. And so on. Because they are about government/indivdual relations.
But how can the first part of the Second Amendment,the part that individual guns rights proponents tend to downplay, apply to the States? It is all about preserving a State institution from Federal control.
Of course, SCOUS can do whatever it wants, and it may very well want to use the Selective Incorporation “test” of the fundamentality of the right in issue to decide that, yes,the Second applies to the States under 14th Amend due process. There were hints of this in Heller. Indeed, Heller doesn’t really make much sense unless the right is seen as fundamental and as applying universally. Under what I believe is the correct interpretation, the Federal govt, in places where it has police power b/c there is no State (as in DC), should not be affected by the Second Amendment. As there is no State militia to be concerned with in DC, there is no need to protect it from the Fed.
But the Court wanted to find an “individual” right,so it did so. Even though, as the author mentions, there will always be regulations of weaponry. Instead of having an Amendment that actually means something, even if the rationale behind it has become, perhaps, archaic, we now have another area where the Su Ct gets to play philosopher king, “balancing” governmental purpose and individual “rights” in an endless dance of litigation and legislation. And even though, under a proper, conservative understanding of Federalism (as our author here points out), the States are perfectly competent to deal with this issues themselves, and the fact that different States (with NY and Illinois on one side and Texas on the other) have come to radically different conclusions a sign of the health and vitality of our Federal system, rather than a problem. No, the unprincipaled “conservatives” on the Court preferred this approach for political purposes, making hypocracy of their complaints about lack of judicial restraint, their calls for original intent to govern, and, soon enough, I fear, their claims of concern for Federalism.
Your interpretation of the Constitution allowed America to keep four million black slaves for almost 100 years after independence.
And your interpretation of the Constitution was abolished by the Fourteenth Amendment which has been the law of the land for almost 150 years now.
Union won. Confederacy lost. It’s over, it’s final. Get over it.
And upholding, protecting, and defending the Constitution means ALL of it, not just the parts you happen to like.
You sir are no conservative; you’re a retrograde, a reactionary, one who longs for an unrestorable previous time (a time, I should add, which no conservative wants anything to do with). We spit you out of the conservative movement with contempt. Begone.
Good for Jack Hunter, and kudos to Kevin Gutzman! They’re absolutely correct about the original purpose of the Bill of Rights.
This debate illustrates the danger of single-issue politics. The gun rights folks mean well, but have focused on the Second Amendment so much they do not see the forest for the trees. They fail to see that boosting Federal hegemony over the States will ultimately work against liberty.
Great article, as usual.
To the author:
You write,
“The Bill of Rights was never intended to be a list of individual rights, but a list of things the federal government could not do to the states.”
This could not be more wrong.
Individuals, not states, practice religion and need their right to speak, print, or assemble protected.
Individuals, not states, are the “People” whose right “to keep and bear arms shall not be infringed.”
It is not the States, but Individuals who have houses in which soldiers may not be quartered.
Individuals, not states, need to be secure in their persons etc. against search and seizure.
That’s the first four items in the Bill of Rights. Need I continue?
The favor of a response is respectfully requested,
Andrew Hyman who represents the group “Arms Keepers” has a good piece up at The American Spectator today with a title similar to mine (“Guns are Pointed at the Constitution”)– and for the same reasons:
http://spectator.org/archives/2010/03/08/guns-are-pointed-at-the-consti
Mr. Grimes,
Before 1868, states could establish their own religions and violate people’s rights without due process of law.
That changed when the Fourteenth Amendment was ratified, forbidding states to infringe on people’s rights without due process of law.
As for fears that same-sex “marriage” would be ruled as a right by federal courts, I should note that while speech and bearing arms were generally recognized as rights in 1868, “marrying” someone of the same sex was not. The only way courts would interpret the Fourteenth Amendment to protect a right to same-sex “marriage” would be to interpret it to protect something that it clearly did not at time of ratification, as well as ignore case law regarding gender discrimination (Minor v. Happersett, Baker v. Nelson, Rostker v. Goldberg, Michael M. v. Superior Court).
“Before 1868, states could establish their own religions and violate people’s rights without due process of law.
That changed when the Fourteenth Amendment was ratified, forbidding states to infringe on people’s rights without due process of law.”
What does “without due process of law” mean? On it’s surface, it sounds like a procedural protection: that there must be a duly enacted law, that there must be notice and opportunity to be heard, that the trier of facts be unbiased, and so on. And, indeed, much “due process” doctrine involves these very issues. Reading the 14th Amend. D P clause (or, indeed, any D P clause) as doing more than this is called “substantive due process” (how is that for an oxymoron?) and is generally frowned on by conservatives (at least the modern ones) because it is extra textual and because it involves judicial activism. In the case of the 14th Amend, it also contrary to Federalism. The abortion/birth control cases are examples of substantive due process.
As for established churches, that involves still another aspect of 14th Amendment due process. Namely, that the provisions of the BofR, or some of them, were “incorporated” into the 14th Amendment’s D P clause. Famously, Justices Black and Frankfurter and Harlan argued this out decades ago. There is some support in the legislative history of the 14th Amend to support the incorporationist view, but, textually, a D P clause seems like a strange way of saying that the BofR (including the anti establishment clause) applies to the States. And, of course, Federalism seems to argue against it as well. Again, conservatives usually took the no incorporation view. Above, I tried to explain why “incorporation” of the Second is even more difficult to square with a conservative view of jurisprudence.
“As for fears that same-sex ‘marriage’ would be ruled as a right by federal courts, I should note that while speech and bearing arms were generally recognized as rights in 1868, ‘marrying’ someone of the same sex was not.”
But even free speech was not seen as some sort of universal “right” in 1868. Again, at that time, the First Amendment only applied to the Federal government. The Supreme Court did not clearly hold that the States were bound by more or less the same First Amendment doctrines regarding free speech as the Fed was until the 1920′s.
As for “bearing arms,” to repeat from my first comment, it was only seen as “right” to be protected from Federal infringement in terms of membership in a State militia. Even less so than “free speech,” gun “rights” were not at all as established in 1868 as you make them out to be. No Federal law had ever been struck down under the Second Amendment (indeed, none had been struck down until Heller), and the jurisprudence was clear that the Second Amendment (whatever it meant) did NOT apply to the States.
Even in terms of “bearing arms” (as opposed to “gun rights” generally), the States were free to determine who could be excluded from the militia, and thus had no right to bear arms. The militias were under State control. As I said last time, it was to preserve that very State control that the Second Amendment was passed.
You are arguing, IMHO, in an ahistorical way. There was no “guns rights” notion in the 19th Century. Still less in the 18th Century, when the Second Amedment was written. The amendment applied only to the Fed, and was understood as dealing with militias and State/Federal relations. No one expected, or even speculated, in the 1790′s, that the Fed govt would try to enact national “gun control” legilslation for purposes of crime fighting. Crime fighting was a State concern only at that time.
“The only way courts would interpret the Fourteenth Amendment to protect a right to same-sex ‘marriage’ would be to interpret it to protect something that it clearly did not at time of ratification, as well as ignore case law regarding gender discrimination. . .”
Frankfurter and Harlan argued that the Fourteenth Amendment did NOT protect many of the various rights spelled out in the BofR (although they did see it as protecting free speech). To them, it was just as “clear” that the 14th should not be interpretted to protect a person from a warrantless search or a coerced confession or from cruel and unusual punishment, even though all of these were recognized as “rights” under the BofR. Gun rights, under a proper interpretation of the Second, were not protected at all under the BofR.
Gun rights, as per Heller, divorced from serving in State authorized militia, are no different than abortion or contraceptive rights. They are, all of them, examples of substantive due process. And abortion and contraceptives do not involve incorporation. Neither will gun rights,if the SCOUS exends Helller to the States. Despite the rhetoric they might use.
In any event, I think same sex marriage is more likely to fall into the Equal Protection clause jurisprudence than that of the D P clause.
Interesting piece and comments. I have to confess to being a bit more confused after reading all of this. I find astonishing and fascinating the contention that the Bill of Rights was intended to protect the right of states to rule on matters that affect individual liberty, rather than protect individual liberty against all incarnations of The State.
I find the arguments a little weak and ideologically convenient wherein commenters have proposed that this or that clause protects the rights of individuals, but this or that protects the states.
Apparently, I’ll also need to do some reading on the 14th amendment.
I’m not sure how marriage got in the discussion, but I do have a question for anyone who has bothered to read this far: When I go to a wedding, no matter what state, the officiator claims authority granted him/her by the people of a state. Don’t then the people of a state have the right to decide which marriages they are endorsing? As far as the law or the state is concerned, isn’t that what defines a legal marriage?
Funny, I thought the Bill of Rights were a list of rights NO ENTITY could infringe.
“You sir are no conservative; you’re a retrograde, a reactionary, one who longs for an unrestorable previous time (a time, I should add, which no conservative wants anything to do with). We spit you out of the conservative movement with contempt. Begone.”
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In that case exactly what is a conservative? What does the conservative wish to conserve? Are we now to conserve 150 years of a nearly unimpeded march toward centralization and the massive nanny-state? Mr. Kent’s “conservatism” seems to be nothing more than today’s assent to yesterday’s innovations: a little hand-wringing followed with joining the progressives to beat down the opposition. Why even bother? Worse yet it makes yesterday’s conservatives into today’s villains. Comforting to know that tomorrow’s “conservatives” will join our progressive oppressors in despising us for our feeble attempt to cling to a remnant of the permanent things; not for the frailty of the attempt, but for the attempt itself.
Favoring the original relationship between the Federal government and the States is quite conservative despite the long existence of the 14th Amendment. The 16th Amendment has existed for nearly a century. Is it retrograde to favor abolishing that part of our Constitution? I suppose nullification is definitely out of the question since movement “Conservatives” want nothing to do with it either. That no “conservative” in the “Conservative” Movement wants anything to do with anything substantial regarding constitutional issues is why most actual conservatives are not movement “Conservatives.” Movement “Conservatism” these days is merely a rough equivalent to neo-conservatism or at least its enthusiastically willing dupe.
Lastly, it is laughably absurd that any state would legalize slavery today should the 14th Amendment be abolished so stop using the slavery issue as a hammer. Are any of the potentially objectionable acts by the states really worse than the actually objectionable acts by the Federal government? At least it would be easier to leave a one state for a better one than to leave the country.
“I have to confess to being a bit more confused after reading all of this. I find astonishing and fascinating the contention that the Bill of Rights was intended to protect the right of states to rule on matters that affect individual liberty, rather than protect individual liberty against all incarnations of The State. I find the arguments a little weak and ideologically convenient wherein commenters have proposed that this or that clause protects the rights of individuals, but this or that protects the states.”
First of all, there is simply no doubt whatsoever that the BofR, as written, pre 14th Amendment, did NOT apply to the States, or their instrumentalities, but only to the Federal govt.
I think it is pretty clear that MOST of the provisions of the BofR, as originally writen, were designed to protect indivduals from the Federal government. But some of them do involve preserving State authority (or “States’ rights,” if you will) from Federal intrusion. The Tenth Amendment is clearly aimed, at least in part, at the latter goal (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”). And, I believe a correct reading of the history and text of the Second Amendment shows the same thing.
I’m not sure why this should come as such a big surprize. Many Americans feared that the new Constiution would create a Leviathon Federal government. After ther experiences with Parliament and the Crown and other Imperial institutions (the Privy Council, the Royal Navy, etc.), they feared centralized authority more than anything else.
The Fed outlined in the Const was clearly going to be stronger than either the Continental Congress or the Articles of Confederation govt. At the same time, Americans prized not only their individual liberties, but their State and local governments too. A big part of the colonial/revolutionary struggle was about where would ultimate power lie, in Boston (and the other colonial/State capitals) or in London? By the end, the British were supspending colonial and local govenment altogether.
But these had deep roots. Some of the colonies had existed for 150 years before the Revolution. They commanded people’s loyalty in a way that “the British Empire,” or “Great Britain,” or “America” did not. And they transited seamlessly from being colonies to being States. It was not until after he Civil War that “patriotism” clearly came to mean love of the USA as opposed to love of one’s State. Men often referred to their State as their “country.”
So, yes, the BofR was primarily about protecting individuals, but it was about protecting the States too.
“I’m not sure how marriage got in the discussion, but I do have a question for anyone who has bothered to read this far: When I go to a wedding, no matter what state, the officiator claims authority granted him/her by the people of a state. Don’t then the people of a state have the right to decide which marriages they are endorsing? As far as the law or the state is concerned, isn’t that what defines a legal marriage?”
Yes. It is a State, as a police power, general purpose government, that regulates and defines the legal institution of marriage (religious and spiritual conceptions of marraige are another story). So the people, through their elected representatives, do have the authority to decide which marriages to endorse. Of course, that decision is subject to the State’s constitution, which is where some States’ highest courts have found reason to disallow prohibitions on gay marriage. In California, the voters purported to change the State constitution after such a ruling. In addition, this exercize of this State power must also conform to the US Constiution, specifically, to the 14th Amendments,with its due process and equal protection clauses.
“Funny, I thought the Bill of Rights were a list of rights NO ENTITY could infringe.”
Do to selective incoroporation, this is true if by “no entity” you mean no government, at any level, in the USA, but only with respect to most of its provisions. Some provisions still only apply to the Federal government. For example, no part of the Seventh Amendment (“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”) has been incoroporated into the 14th Amendment. And the grand jury indictment clause of the 5th Amendment has not been incorporated either.
Here is a nice, little, one page summary of the incorporation doctine and its history:
http://www.law.umkc.edu/faculty/projects/FTrials/conlaw/incorp.htm
Mr. Ejercito,
I confess I was wrong about the religion example, but one of the points I have been consistently trying to make–and which no one else is addressing–is that states also have Constitutions.
NC had a constitution prior to the U.S. Constitution. Our first one was in 1776, and it granted many of the same protections:
http://www.learnnc.org/lp/editions/nchist-revolution/4330
NC did have a so-called “religion test”. You had to be protestant.
Our current constitution asserts that :”Every citizen of this State owes paramount allegiance to the Constitution and government of the United States, and no law or ordinance of the State in contravention or subversion thereof can have any binding force.” So no one can argue my state has the right, now, to pass laws that violate the U.S. Constitution.
Arguments about the original Bill of Rights as though it is revealed Scripture inscribed on stone by the finger of God are pointless.
BTW, here’s another column on this topic from Sunday by George Will:
http://www.washingtonpost.com/wp-dyn/content/article/2010/03/05/AR2010030502873.html
Mr. Ejercito,
I confess I was wrong about the religion example, but one of the point I have been consistently trying to make–and which no one else is addressing–is that states also have Constitutions.
NC had a constitution prior to the U.S. Constitution. Our first one was in 1776, and it granted many of the same protections:
http://www.learnnc.org/lp/editions/nchist-revolution/4330
For example, NC citizens had freedm of press, protections from excessive bail, and a right to a jury, among others, before they had such civil rights within a national framework.
And while maybe some states could establish religion NC’s original Constitution had this:
“That there shall be no establishment of any one religious church or denomination in this State, in preference to any other; neither shall any person, on any presence whatsoever, be compelled to attend any place of worship contrary to his own faith or judgment, nor be obliged to pay, for the purchase of any glebe, or the building of any house of worship, or for the maintenance of any minister or ministry, contrary to what he believes right, of has voluntarily and personally engaged to perform; but all persons shall be at liberty to exercise their own mode of worship: — Provided, That nothing herein contained shall be construed to exempt preachers of treasonable or seditious discourses, from legal trial and punishment.”
Our current constitution asserts that :”Every citizen of this State owes paramount allegiance to the Constitution and government of the United States, and no law or ordinance of the State in contravention or subversion thereof can have any binding force.”
It seems likely to me that the framers wanted the same protects from the federal government that many of them *already had* in their respective states. It also seems reasonable to me that later generations might want the same protections from their states that they have from the federal government.
BTW, here’s another column on this topic from Sunday by George Will:
http://www.washingtonpost.com/wp-dyn/content/article/2010/03/05/AR2010030502873.html
The States certainly did, and do, have Constitutions.
“It seems likely to me that the framers wanted the same protects from the federal government that many of them *already had* in their respective states.”
Yes, and, to some extent, that explains the origins of the BofR.
“It also seems reasonable to me that later generations might want the same protections from their states that they have from the federal government.”
Yes, and those later generations could amend their own State constitutions to provide what they want.
But the Second Amendment was not really a protection of an individual right from the Federal government. Rather it protected a State institution, the militia, from the Federal government. So, it is hard to see how it could simply be taken from the BofR and made applicable to a State.
As you say, many State constititutions alrady have a provision relating to arms. These provisions could be made more explicit. Most of them, though, as of now,allow gun control regulation by the State government, at least as interpretted by the State courts. According to Wikipedia, 44 States have some sort of State constitutional provision relating to guns. But all or most of them have some sort of gun control laws.
http://en.wikipedia.org/wiki/Gun_laws_in_the_United_States_(by_state)
One later generation in particular, the Civil War and Reconstruction generation, went a step further,and imposed US Constitutional limitations on the States (mostly in the 14th Amendment). The question is, in so doing, did they mean to simply “translate” the BofR to the States?
Textually, one would have to say that a due process clause is a strange way to do it. The Fifth Amendment has a DP clause too. But if a due process clause means “everything in the first 10 (or
amendments,” why were the other amendments, and the other clauses of the 5th Amendment, even necessary? On the other hand, it is true that some of the authors and supporters of the 14th Amendment, in the debates in Congress, mentioned “the Bill of Rights” in an offhand, shorthand kind of way, to indicate the rights they expected the new amendment to protect from State infringement (either through the DP clause or through the Privileges and Immunities clause–which has become something of a dead letter).
And over the century and a half since then, most,but not all, of the BorR provisions have been held to be applicable through incorporation in the 14th Amendment to the States.
I have tried to show why the Second Amendment, which was written to protect a State institution (the militia) from Federal interference or abolition is not a good candidate for incorportaion.
I’m just a very old, country hick, but I think I pretty-well understand what I read.
I understand that the Declaration of Independence is one of our “founding documents” and to me, the very most-important one. This is because the Declaration was written and promulgated in 1776, way before the US Constitution was written in 1787. The Declaration was the statement that “stirred men’s souls.”
When I read the Declaration of Independence and it says:
“We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness —” I just cannot believe that those who endorsed the Declaration meant to say that all those Rights that had been endowed by our Creator were subject to nullification later-on by the individual colonies or states.
I think that the founders were trying to set the tone or theme in the Declaration for a truly free society. A society in which government’s powers (at all levels) were severely-limited to seeking out, preventing, and punishing by restitution and retribution the following: (1) fraud, (2) misrepresentation, (3) theft, and (4) unprovoked, violent, physical aggression against others. (Sort of derived from English Common Law.)
This motif would not allow governments to interfere with any legitimate contract between consenting individuals, much less become a tyrannical “nanny-state” that tries to control every single movement of an eyelash.
It was later-on (1787) when the Federalists decided to create our all-powerful central government.
I totally reject the idea as oxymoronic that a (1787) government that advocated unlimited rights (except for items 1, 2, 3, & 4 above) would intend that the several states could nullify any or all individual rights by action of the legislature.
My interpretation of the “Bill of Rights” is that the US Constitution was to severely limit the United States of America (Feds) to those powers that were “enumerated” within the Constitution itself.
The “Anti-Federalists” did not trust the “Federalists” and insisted that the First Ten Amendments be added in order to specify and guarantee individual rights (THAT THEY ALREADY POSSESSED BY VIRTUE OF ENDOWMENT FROM THEIR CREATOR!)
Besides, in addition, the (1868) XIVth Amendment emphasized the guarantee of those individual rights by saying, in part:
“. . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . .”
As long as I am a citizen of the United States of America, I invoke the above clause to tell the governments of each of the several states: ‘BUG OFF ! ! ! You can take away my gun (and all my other God-endowed rights) only from my cold, dead hands!”
I am a SOVEREIGN INDIVIDUAL unless AND UNTIL I foolishly violate the sanctions of (items 1, 2, 3, & 4 above.) Should I violate the similar rights of others, then I thoroughly expect them to set things straight.
Otherwise, leave me alone to live my life and associate and trade with those whom I choose in anay and every peaceful manner that I choose.
David Michael Myers, 10 March 2010
Mr. Meyers:
The DofI has no legal signficance. It simly announced our independence and set forth the reasons why we were declaring it.
And while it is certainly true that the Continental Congress, the Articles of Confederation and even the Constituion set up or consisted of limited central governments, it is not at all true that the colonial and State governments confined themselves to enforcing merely the four types of laws that you enumerate. The Founding Fathers were quite comfortable with the States exercizing general, police powers, and they did so with gusto. States regulated wages and prices, and State instrumentalities (such as towns) routinely exercized powers that we would now call land use, zoning, or planning. It is simply NOT true that the legal regime of the Revolutionary era was a libertarian or propertarian paradise. Far from it.
The BofR actually did more for individual rights than you claim. It did not merely restrict the Fed to its enumerated powers (the original Const did that), but it placed limits on how the Fed could act even when it was exercizing one of its enumerated powers.
As for the P and I clause of the 14th Amendment, you are simply begging the question. What are the P’s and I’s of being a United States citizen, which the States can’t abrige?
I have no desire to discuss the concept of natural law and natural rights with you. That is too complex a topic for this time and place.But, suffice to say, you are not a “sovereign individual.” You are a member of a polity, and sovereignty in that polity resides in the Federal and State governments, not in the individual. The only exception would be if a revolution were to succeed, then sovereignty would revert back to all the people, not just you, and not as individuals.
Ruddy Turnstone:
Legal-Schmiegle. Let’s talk logic.
First, take a look at the “Federal Pre-Emption Clause” [US Constitution, Article IV, Section 2.]
This says what the “Supreme Law of the Land” is and it also says that the Supreme Law of the Land overrides every State law, no matter what (or words to that effect.)
The Privileges and Immunities to which the 14th Amendment refers are (at least.) ALL the Rights, Privileges, and Immunities contained in Amendments 1 through 10. Amendment IX opens the door for THOUSANDS of rights that no one has taken the trouble to write down because no one assumed that a tyrannical nanny-state would even think of denying them
You might notice that I cited “a truly free society.” I think that was their goal. I realize they (the Founders) were comfortable with being ruled by a “sovereign.” That does not mean that they were not far-sighted enough to provide for those bold enough to assert their own individual sovereignty.
I assert mine every chance I get. As long as I avoid assassination and imprisonment, I think I’m doing pretty well.
You are correct! The Natural Law discussion is extremely complex and can’t be conducted here, but my Natural Law faculty for expression of the rules of a truly-free society urges me to try to “think out of the box” of statist propaganda and error.
Ruddy Turnstone:
Sorry, That citation was Article VI, Section 2.
I have digital dyslexia.
DMM
“Legal-Schmiegle. Let’s talk logic. First, take a look at the “Federal Pre-Emption Clause” [US Constitution, Article IV, Section 2.]Sorry, That citation was Article VI, Section 2.)] This says what the “Supreme Law of the Land” is and it also says that the Supreme Law of the Land overrides every State law, no matter what (or words to that effect.)”
OK
“The Privileges and Immunities to which the 14th Amendment refers are (at least.) ALL the Rights, Privileges, and Immunities contained in Amendments 1 through 10.”
You’re just assuming the conclusion here. Who said so? Who said the P’s and I’s of US citizens = the rights enumerated in the BofR? How does “logic” dictate that result? The rights in the BofR aren’t not even written down in terms of being restricted to “citizens of the US,” but apply to all “persons.” Anyway, a “privilege” or an “immunity” was NOT necessarily just another way of saying a “right” either. You are just skipping over a ton of legal history and textual analysis here just to get the result you want.
And it is history that is the main factor, not “logic.” Constitutional analyis is not like a game, or even a puzzle in symbolic or other logic. One has to look at context, at change over time. At what the persons involved (legilslators, lawyers, judges.etc.) were thinking at the time. Not just say “this means that means the other, QED, I win!”
Anyway, this is what Justices Black argued to Jusices Frankfurter and Harlan. And ink was spilled in many a law review article as well. In the end, Black won, but only partially, as not all of the first ten amendments were incoprorated into the 14th. And it was the due process clause of the 14th, rather than the P and I clause, rightly or wrongly, that did the heavy lifting.
“Amendment IX opens the door for THOUSANDS of rights that no one has taken the trouble to write down because no one assumed that a tyrannical nanny-state would even think of denying them.”
I agree, but the 9th Amendment, while “opening the door,” doesn’t really say what gets in the door and what doesn’t. It more or less auhorizes the Supreme Court to do substantive due process analyis, at least in cases involving the Federal govt.
“You might notice that I cited ‘a truly free society.’I think that was their goal. I realize they (the Founders) were comfortable with being ruled by a ‘sovereign.’”
I doubt they even considered anything else. I think they believed that freedom required some degree of order. And that, for the most part, the State govts. were going to supply that order.
“That does not mean that they were not far-sighted enough to provide for those bold enough to assert their own individual sovereignty.”
Again, I think that the vast majority of the Founding Fathers would have thought that “individual sovereignty” meant something like anarchy, or the law of the jungle. I do not for one moment believe that anything they wrote in the Constitution, or the BofR (including the Ninth Amendment), was intended as authorizing “indivdual sovereignty,” or any other form of extreme libertariansim.
The Founding Fathers, while believing stongly in liberty, including individual liberty, were also imbued with a more communitarian viewpoint than is, I believe,often realized. Whether the community was defined as the locality, the State or the country, most of them thought allegiance should be paid to it. The Wealth of Nations was only written in 1776. Most Founding Fathers, to the extent they had any theoretical economic view at all, were probably mercantilists. Everywhere one went, except, perahaps, on the frontier, one was subject to fairly strict criminal and other codes that dictated much behavior. Extreme economic and other forms of libertarianism are really more products of the 19th Century than they are of the 18th.
“I assert mine every chance I get. As long as I avoid assassination and imprisonment, I think I’m doing pretty well.”
I agree,and wish you good luck!
“You are correct! The Natural Law discussion is extremely complex and can’t be conducted here, but my Natural Law faculty for expression of the rules of a truly-free society urges me to try to ‘think out of the box’ of statist propaganda and error.”
All well and good. But it might not be a bad idea, once in a while, to step, and think, outside the box of “propaganda” and “error” coming from the other side!
The 9th Amendment clearly states: “The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.”
The 10th Amendments clears states “… nor prohibited by it to the States … “; you seem to have neglected that “tidbit” from your comprehension. The “enumerated rights” under the “Bill-of-Rights” were not an exhaustive list of “rights” (9th-A) of the people (individuals) or the State; they were a further clarification to avoid those arguments that you erroneously embrace so fondly.
The Bill-of-Rights sets down limits and allowances for the both the Federal government and the State governments but not the people and “defends” the “rights” of the people from usurpation by those selfsame governments.
The 2nd Amendment clearly states: ” … the right of the people to keep and bear Arms shall not be infringed”; this clearly defines the limitations of both Federal and State government with regard to the 2nd Amendment and the “people” and it is not open to arbitration at the Federal and State level; it is the RIGHT of an INDIVIDUAL (people) to “keep and bear Arms”. The individual may choose to keep and bear arms or not as is their individual desire but neither the Federal government nor the State government can restrict their right to “keep and bear Arms”; that is an action “…. prohibited by it to the States” and an explicitly “protected right” of the people (individual).
Had the “Framers” of our Constitution and the Bill of Rights wished it to say something other than what it says; the Constitution would have said so in clear terms.
Our “Founders” were eloquent both in their brevity and clarity; they did not need a 3000 page document of Lies to create our Country; THEY needed only a few pages of Truth.
“The ‘enumerated rights’ under the ‘Bill-of-Rights’ were not an exhaustive list of ”rights’ (9th-A) of the people (individuals) or the State. . .”
Yes.
“The Bill-of-Rights sets down limits and allowances for the both the Federal government and the State governments but not the people and ‘defends’ the ‘rights’ of the people from usurpation by those selfsame governments.”
Simply incorrect, at least with regards to defending the people from State goverments. The BofR, as written, was only intended to apply to the Fed. And it was so held by a unanimous Supreme Court in an uncontroversial decision.
It is only with the passage of the 14th Amendment that there can be any argument at all that the BofR applies to the States. And it takes some pretty fancy intrepretation of the 14th to provide even that. And, to this date,not all of the BofR has been held to apply to the States.
“The 2nd Amendment clearly states: ‘ … the right of the people to keep and bear Arms shall not be infringed;’ this clearly defines the limitations of both Federal and State government with regard to the 2nd Amendment and the “people” and it is not open to arbitration at the Federal and State level; it is the RIGHT of an INDIVIDUAL (people) to ‘keep and bear Arms.’ ”
Wrong at every level. You leave out the first part of the Second Amendment, which just as clearly states, “A well regulated Militia, being necessary to the security of a free State…” which clearly ties the second phrase into a context of preserving the militia. This was pretty obvious to dozens of Federal courts which interpretted the Amendment pre Heller. And it is obvious from the legislative history of the Amendment as well. The amendment was meant to protect State militias from Federal encroachment. The word “people” is used to denote the fact that the State can authorize the people within it’s borders, as part of that well regulated militia, to keep arms in their homes and bear them as soldiers if need be. It has nothing to do with using guns for self defense against criminals, target practice or sport, or hunting. That is what is “clear” from the wording, which explicitly mentions the militia, and which uses the term “bear arms,” a phrase that ONLY applies to carrying arms as a soldier, not for any other purpose. And from history.
It wasn’t until the advent of gun control laws in the 20th century that gun enthusiasts began to read back the interpretaion they desired into the Amendment. No court took it seriously, because it was (1) obviously incorrect and (2) just as obviously the product of politics and expediency. The current Supreme Court bought into it for poltical reasons.
“The individual may choose to keep and bear arms or not as is their individual desire but neither the Federal government nor the State government can restrict their right to ‘keep and bear Arms’…”
Wrong. The State and Federal government are certainly going to be allowed to maintain some forms of gun control. The Supreme Court, in Heller,did not announce some absolute right for every individual to have any kind of weapon he or she might want, free of restriction.Far from it.They set up a balancing test which, in practice, is going to mean that most forms of gun control will be allowed, Instead of a clear rule one way or the other, you are going to get endless legislation, litigation, rulings at the District level which are reversed on appeal to the Courts of Appeal, whose rulings, in term, will be reversed by the Supreme Court, 5 to 4, which will then reverse its own ruling a few years later after there has been a vacancy. Meanwhile, the Fed, the States, and their instrumentalties will be passing more laws, each and every one of which will be challenged, even though only a handful will ever be stricken down permanently.
“Had the “Framers” of our Constitution and the Bill of Rights wished it to say something other than what it says; the Constitution would have said so in clear terms.”
It doesn’t say what you think it says. And your claim it tautological anyway.
.
BigIron: Right On !
Ruddy Turnstone:
Please take a gander at this and see how it stacks up with your concepts: URL: http://mises.org/daily/4147
Viva the Common Law !
Down with Statute Law!
Live and Let Live!
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” –14th Amendment
I suppose this writer thinks that states should be able to censor people, search their houses without warrants, and throw them in prison without trial, too.
Dear “Richard L. Kent, Esq.”,
Return forthwith any of your academic degrees to the institutions that conferred them upon you. If you believe that your comment is a worthy critique or argument, you must have cheated on your coursework in logic or reading comprehension to qualify for your degrees, because to write what you wrote, clearly you either do not understand logic or you cannot read. For instance, you begged the question so much, your poor knees must be bruised and sore.
Finally, a calling of another matter to your attention. Notwithstanding the practice of attorneys to feel better about themselves or project arrogance by the styling “Joe Doe, Esq.”, its use in polite or informal company is laughable anymore; especially since the farcical use of it in the popular movie “Bill and Ted’s Excellent Adventure” where one of the intellectually-challenged protagonists consistently refers to himself as “Bill S. Preston, Esq.”
If that doesn’t convince you, I will pull rank on you. Sincerely,
His Serene Highness Rick Hanson, Grand Prince of Terra Columbia
“Ruddy Turnstone: Please take a gander at this and see how it stacks up with your concepts…”
It is an interesting article that has nothing to do with this disucssion. That’s what I see…
[...] READ THE REST [...]
rudyturnstone quotes and replies: “The 2nd Amendment clearly states: ‘ … the right of the people to keep and bear Arms shall not be infringed;’ this clearly defines the limitations of both Federal and State government with regard to the 2nd Amendment and the “people” and it is not open to arbitration at the Federal and State level; it is the RIGHT of an INDIVIDUAL (people) to ‘keep and bear Arms.’ ”
“Wrong at every level. You leave out the first part of the Second Amendment, which just as clearly states, “A well regulated Militia, being necessary to the security of a free State…” which clearly ties the second phrase into a context of preserving the militia.” [end quote]
You keep insisting, it seems, that the right belongs to the state in order to form a militia. Let me just say I own no guns and am not a member of the NRA, but, while the intent was to allow militia to be formed, the right clearly belongs to the people. Everything before the “right of the people” is a modifier, explaining or expounding on why, but the right is the peoples.
A thought experiment: Image a state bans all guns, and decides not to have a national guard or militia of any sort. Now imagine the federal government were to “invade” that state. (Imagine it’s, say, 1820.) Are you saying, then, that the people of that state do not have the right to spontaneously form their own militia just because the state had banned guns?
I believe states do have the right to pass gun control laws, regulating some aspects of ownership, but they do not have the right to ban them, entirely, from everyone, and I believe that was the case prior to the 14th Amendment.
I see our unconstitutional centraly controled educational system has succeeded in turning the minds of many of my fellow Americans angainst themselves.
Many of the so-called conservatives in the posts I’ve read are sharing a “liberal/progressive” view that the Federal government is an all powerful, end all be all entity that holds unending power over all.
It is the People that are the final arbitor of their Natural Rights and it is up to the People to establish government and laws the secure those Rights. When that government begins to violate those Rights, it is up to the People to correct it. If the People give up their responsiibility of securing their Rights to an All Powerull central goverment or a document that the People have very little direct power(if any) to change or effect then they will soon loose the right to call themselves Free Men.
While I may have enouph firepower to make a small town swat officer envious, I do not want the federal government to have the power to say that’s alright. Because in the future the political winds may change and they may say its not alright. I have a better chance keeping my state government in line than I will ever have keeping a massive federal government in line.
So I’m on the side of Mr. Hunter, Mr. Gutzman and Mike and others of the same opinion.
Please forget most of what they’ve taught you in the puplic schools people, they’ve been lying to us all for decades. Including me. But I’ve taken it upon myself to re-educate myself in the True history and Founding of these united States.
beatbox, on March 5th, 2010 at 5:42 am Said:
“I’m not a constitutional scholar.”
Pretty much sums it up right there.
*******************
So beatbox, are you a professional (what? journalist, lawyer, philosopher – what) that you dare comment on this article?
Every American is entitled to an opinion and experts can shove it – look at the Global Warming (give me all the money and power in the world) “Scientists”
“A thought experiment: Image a state bans all guns, and decides not to have a national guard or militia of any sort. Now imagine the federal government were to ‘invade’ that state. (Imagine it’s, say, 1820.) Are you saying, then, that the people of that state do not have the right to spontaneously form their own militia just because the state had banned guns?
“I believe states do have the right to pass gun control laws, regulating some aspects of ownership, but they do not have the right to ban them, entirely, from everyone, and I believe that was the case prior to the 14th Amendment.”
If a State had banned guns entirely before the 14th Amendment, then, in your “thought experiment,” set in 1820, the people of that State would have been without guns entirely. In which case the Federal invasion that you posit would have been facilitated by State law.
And, I’m sorry, but there is simply no way at all in accord with the actual Constitutional history to assert that the Second Amendment restricted the States prior to the 14th Amendment. The general principle of the BofR not applying to the States was announced in an uncontroversial, unanimous Supreme Court decision. And numerous lower Federal and State courts specifically rejected the notion of the Second Amendment applying to the States. And all of this way true depite the wording of many of the guarantees in the BofR (outside of the First Amendment and including the Second Amendment, to some extent) being phrased in general terms. As in “no person” should suffer so and so to happen, without mention of it being only Congress or the Federal govt. that could not do so and so to any “person.”
Interestingly, such an invasion scenario was not necessarily that far from the supporters’ of the BofR minds. But, they figured the States would retain militias, would, in fact,not only allow but require all able bodied free men (with some exceptions) to “keep” arms in their houses and “bear” them as soldiers if need be.
As for your textual analysis, as Madison himself, I believe, said, there are more things than there are words. The Constitution, and its amendments, were not written by one person at one time in one place. A phrase, such as “the people,” can easily be subject to subtly different interpretations and definitions in different contexts, even it there were unity of time, place and authorship. How much more so under the true history of the Constitution and its amendments.
I would argue that context is everything, or nearly everything. The phrase “natural born citizen”appears in the Constitution. Because of the context in which it is used, it is not very persuasive to say that means a person born without resort to a Ceasarian section. In a play, like “MacBeth,” in a witches’ prophesy, “a man born of woman” CAN be taken to exclude a man born from a C section, like MacDuff. But not in constitutional analysis.
Similarly, in the context of the Second Amendment, in the context of the preceding statement about the militia, the phrase “the people” does NOT necessarily mean what it might mean elsewhere in the document. I believer it is hard to find a word other than “people” to describe the collective right (or individual right as part of a collective) that the citizens of a State had to the maintenance of their militia free from Federal prohibition or crippling interference. How could the Framers say, without resorting to convoluted language, that the folks eligible under State law to be militia members would have the right to keep and bear arms for the purpose of use in that militia without using the term “people?”
And, anyway, the word used is “people,” not “person” or even “persons.” So, right there, the focus is on a group of people, not on the individual.
And, to provide further context, one needs to look at the legislative history of the Amendment. And, again, there one will find that what was intended to be protected was these State institutions, and their members (but only as members). The idea was to prevent a Federal law that went straight at the militia members themselves, and tried to disarm them, as well as a Federal law aimed at the States.
Remember too, again, in context, that most States had something similar to the Second Amendment in their consitutions. And that State militias were popular. No one was afraid, in the 1780′s, that the States were going to get rid of their militias, because they were protected by the State constitutions AND were politicaly popular. And no one was concerned about “gun control” law in any other context, because that simply was not a matter that was legislated upon at that time (except, perhaps, with respect to African Americans).
What was feared was an overweaning Federal govt riding roughshod over the States, using its standing Army to get its way, and preventing the States from fighting back by undermining the militias. That’s why the Amendment was proposed and passed. And no amount of wishing it weren’t so because one desires to have a general “gun right” embodied in the Constitution, and applicable against all governments, at every level, will change that.
“And, I’m sorry, but there is simply no way at all in accord with the actual Constitutional history to assert that the Second Amendment restricted the States prior to the 14th Amendment.”
I’m sorry, but I disagree, not on legal grounds determined by case law, but on the philosophical grounds they gave the underpinnings to the Constitution. Rights do not come to the people, any people, by the government. “Bearing arms” is something that was done long before the discovery of gunpowder, rifling, or bullets.
The general right is the right to protect oneself, one’s family and one’s property from tyrannical governments.
“If a State had banned guns entirely before the 14th Amendment, then, in your “thought experiment,” set in 1820, the people of that State would have been without guns entirely.”
No, they would have been without legal guns, and they still would have had the right to take those illegal guns and use them to protect themselves from the federal government.
“In which case the Federal invasion that you posit would have been facilitated by State law.”
Once again, no, not facilitated by state law. It’s just that in your scenario you seem to be arguing that because the Federal Constitution applies to the federal government that somehow states could create the circumstances that would deny the people the right to protect themselves from the federal government, and then it would be, according to you, all nice and constitutional, but it would still be denying the people the right to defend themselves from a tyrannical government.
Once again, many of the states had already taken care of their constitutions, and the framers wanted to ensure that the federal government could not deprive the people of their rights anymore than the state governments. Their purpose was not to make sure that the federal government could not deprive people of their rights and to make sure that only the states could deprive people of their rights. Their purpose was say not the federal government either.
If it’s a right, truly a right, then no government can legitimately deprived anyone of it without due process. Part of the justification and rationale behind the 14th amendment itself was to clear up the confusion of people who wanted to argue just what you’re arguing; that is, that just because the federal government can’t deprive you of your rights doesn’t mean the state can’t.
“I’m sorry, but I disagree, not on legal grounds determined by case law, but on the philosophical grounds they gave the underpinnings to the Constitution. Rights do not come to the people, any people, by the government. ‘Bearing arms’ is something that was done long before the discovery of gunpowder, rifling, or bullets.The general right is the right to protect oneself, one’s family and one’s property from tyrannical governments.”
Without “legal grounds” and “case law” all you have is subjective opinon and personal preference. Anyone can say that, under natural rights theory, anything is a “right.” But that alone doesn’t carry the day. Unless you are an anarchist.
And history does not support you either, as “bearing arms” is NOT something that the state (as in a state in general, not necessarily a US State) has left open to everyone.States have long restricted who could and couldn’t “bear arms.”
As for your “general right”of self defence,where would it end, logically? The “tyrannical governments” you speak of have nuclear weapons. Does that mean that you have a “general right” to possess them yourself? If not, how can you effectively defend yourself, your family,and your property from those tyrants?
And that is not to even mention that what you are talking about is not what “bearing arms” even means.
“No, they would have been without legal guns, and they still would have had the right to take those illegal guns and use them to protect themselves from the federal government.”
The “right” as defined how? And by who? You? If they had no rights under the Federal constitution, or under State law, then under what law did they have them? I know, under Natural law, as determined by you, in your sole wisdom.
“Once again, no, not facilitated by state law. It’s just that in your scenario you seem to be arguing that because the Federal Constitution applies to the federal government that somehow states could create the circumstances that would deny the people the right to protect themselves from the federal government, and then it would be, according to you, all nice and constitutional, but it would still be denying the people the right to defend themselves from a tyrannical government.”
Yes, it would. It would be denying them that “right.” And? It is only a hypothetical situaion. The opposite was in fact the case, as no State abolished its militia.
“Once again, many of the states had already taken care of their constitutions, and the framers wanted to ensure that the federal government could not deprive the people of their rights anymore than the state governments. Their purpose was not to make sure that the federal government could not deprive people of their rights and to make sure that only the states could deprive people of their rights. Their purpose was say not the federal government either.”
You are simply wrong. The purpose was to restrict the Federal government, qua Federal government, because it was more feared than the State governments. Not everything that was forbidden to the Feds was also forbiden to all the States under eacn and every one of their constitutions. Not every State constitution had a provision re bearing arm or guns. Not every State today has one (six States do not). Not every State constitution forbade an established Church, and Connecticut and Massachusetts had one until well into the 19th Century.
Of course, as you say, the purpose was NOT to “make sure” that the States “could deprive people of their rights” either. The purpose of the BofR was to restrict the Fed. Period. It simply had nothing to do with the States one way or the other.
“If it’s a right, truly a right, then no government can legitimately deprive anyone of it without due process.”
But, again, what is “due process?” On its face, it seems to have to do with procedures. Was the bill properly passed by the legislature? Does a finding of violation require notice, a chance to be heard, and the opportunity to present evidence? Is the trier of fact unbiased? And so on.
What does any of that have to do with run of the ranch “gun control” laws? They are passed by the legislature in accordance with constitutional procedures. They are enforced in criminal courts, which have the full panoply of proecedural safeguards and gurantees, including the right to a jury trial.
“Part of the justification and rationale behind the 14th amendment itself was to clear up the confusion of people who wanted to argue just what you’re arguing; that is, that just because the federal government can’t deprive you of your rights doesn’t mean the state can’t.”
You are simplifying, but, yes, that is true. But it still didn’t mean that everything that was forbidden to the Fed is forbidden to the States. After all, the States are the general purpose, police power governments, and the Fed is not (it is a limited purpose government).
And, in this case, as I think I have shown, what was forbidden to the Fed was interfering with a State institution. One cannot simply “translate” that prohibition from the Fed to the State without losing its meaning altogether. It would be like trying to “apply” the 10th Amendment to the States.
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