At issue isn't whether or not the Second Amendment supports the individual's right to keep and bear arms. It does, and it exists to make sure the federal government can in no way infringe on that right.
However, the U.S. Constitution does not prohibit states (or pseudo-states, in the case of Washington, D.C.) from enacting their own restrictions. That was the whole point of the Ninth and Tenth Amendments.
Dr. Kevin Gutzman agrees:
It's one thing to defend the right to keep and bear arms, but it should not be done at the expense of states' rights. After all, that was one of the principles the Second Amendment was designed to protect.
However, the U.S. Constitution does not prohibit states (or pseudo-states, in the case of Washington, D.C.) from enacting their own restrictions. That was the whole point of the Ninth and Tenth Amendments.
Dr. Kevin Gutzman agrees:
- The original understanding of the Bill of Rights, including the Second Amendment, was reflected in the Bill's preamble. That preamble says that the Bill of Rights was added to the Constitution "in order to prevent misconstruction or abuse of its [that is, the federal government's] powers." It was not about empowering federal judges to strike down state laws, in other words, but about limiting federal power.
The Supreme Court reflected this understanding in the 1833 case of Barron v. Baltimore (1833). There, for a unanimous Court, Chief Justice John Marshall said that the Bill of Rights limited only the powers of the federal government, not those of the states. This was the only significant decision in which Marshall came out for a limitation on federal power; he did so because what he was saying was indisputable.
One might counter by saying that the District of Columbia is part of the federal government. Yet, Congress long ago delegated home rule functions to D.C., and it allows residents to elect mayors, city councilors, and a delegate to Congress. When it comes to the Second Amendment, then, D.C. is a state, and the Second Amendment does not restrict its policy-making discretion.
This is not to say that gun control laws are a good idea. It also does not mean that D.C. residents do not have a right to keep and bear arms. What it means is that if they want that right to be respected, people in D.C. should take that up with their own government, not end-run the republican process by trying to get the Court to overturn its valid laws.
If the conservative majority on the Supreme Court rules in favor of Mr. Heller and against the D.C. gun laws, it will be ruling against the original understanding of the Second Amendment.
It's one thing to defend the right to keep and bear arms, but it should not be done at the expense of states' rights. After all, that was one of the principles the Second Amendment was designed to protect.
Labels: Constitution, Keep and Bear Arms
6 Comments:
He's wrong.
If any subordinate jurisdiction is free to impose its own positions, the Constitution means nothing. That, incidentally, was the point of the 14th Amendment, since a number of states made this exact mistake.
Let's suppose for a moment your own state has just declared Islam the State Religion and imposed a 5 day waiting period on publication, subject to review of your material by a government agency.
Okay, I look forward to hearing from you in five days. Don't miss the 1600 prayer time, or you will be flogged.
And don't complain, because it doesn't violate your federal rights. The State has merely made its own rules. You must respect them, or move. Your neighboring state is Mormon, and the one on the other side prohibits all worship.
Incidentally, DC's "home rule" failed this test in two courts so far (and in several previous cases). Some screeching socialist shill for the Communist News Network, disguising his comments with the mask of "state's rights" has little credibility.
IX
The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people.
X
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.
The Second Amendment RTKBA IS Enumerated, and therefore not subject to variance under IX or X.
Epic fail.
Having subordinate jurisdictions free to impose their own positions is the underlying principle of federalism. Even after ratification of the Constitution, the individual states were considered free and independent republics.
As for the 14th Amendment, it was never intended to make the constitutional restrictions of the federal government binding on the states. In fact, it wasn't until the 1920s that the courts started ruling that way.
Your hypothetical example of a state imposing Islamic rule isn't applicable. Article IV, sec. 4, of the Constitution specifically guarantees that each state shall have a republican form of government. Imposing another form of government would be one of the powers "prohibited by [the Constitution] to the states."
If, however, one state were to impose a 75% income tax on its citizens, the federal government would have no say in the matter, but the citizens would be perfectly free to move to another state. The whole point of allowing states to operate independently -- except, of course, in those instances specifically addressed by the Constitution (entering into treaties with foreign nations, imposing duties on imports, etc.) -- is the decentralization of power. That is key to maintaining a free country.
And where did you get the idea that Kevin Gutzman, co-author of The Politically Incorrect Guide to the Constitution, was a "screeching socialist shill for the Communist News Network"?
Because he completely misconstrued the 9th and 10th Amendments, and I can only assume deliberately. However, now that I see he writes for Lew Rockwell, I retract the statement. He's not a socialist, he's a fascist.
Incidentally, the Hypothetical State has a 5 day wait on publication (imposed at the state level as a "reasonable restriction" in case of "hate speech" or "treason"). By publishing 4 days early, you have violated the law.
But don't worry, you still have a federally guaranteed right to free speech, subject to "Reasonable restrictions" at the state level, which you may exercise after being released from (state) jail.
His exact same argument HAS been used, btw, to support the theory of a state religion.
Please show me where the 1st Amendment says a state religion is against the Constitution...since the States in his (mistaken) opinion retain the right to alter the Bill of Rights as they see fit. Nor does Art 4 matter, as long as the State Republic decides said religion should be the official one.
Yup, the Hypothetical State passed all these "reasonable restrictions" through its legislature. The Fed has no right to interfere.
It's time for Sunset Prayer. Please get on your knees. It's a Religion of Peace.
"Fascist," huh? Why don't you try looking up the word sometime? LRC prides itself on being anti-state. Not really sure how one could jump to the conclusion that they want a totalitarian form of government. But whatever.
At the time the Constitution was ratified, there were states like Massachusetts and Connecticut that had state churches. So, no, a state religion per se wouldn't violate the 1st Amendment to the U.S. Constitution. It may, however, violate that state's own constitutional prohibitions against the establishment of a religion.
Why do you insist on binding the states? (Let me guess: You think Lincoln was a great president.) Does the localization of power frighten you? Or is it because you would much rather trust the federal government? Tell me, since when did the three branches of the federal government give a rat's patoot about the Constitution?
As I said, decentralization is key. Unfortunately, nationalists find such concepts foreign. They are afraid it might result in too much freedom. Power MUST be centralized. All hail the national government!
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