by Jack Hunter, from The American Conservative
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. Patrick Henry and his anti-federalist friends did not want an all-powerful â€œnationalâ€ government and insisted the Bill of Rights be added to the Constitution in order to make crystal clear that the federal governmentâ€™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 â€” and yes, firearms â€” 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 Chicagoâ€™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 â€” nor should it be.
Constitutional historian Kevin Gutzman put the Founders intentions into perspective during an interview with radio host Mike Church: â€œwhen 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 doesnâ€™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.â€
So how can the Supreme Court overturn Chicagoâ€™s ridiculous, yet constitutional law using the 2nd amendment? Also, why should conservatives â€” typically champions for gun rights â€” be opposed to this court decision? Because this decision would trample the most important right of all â€” that of the states to limit the power of the federal government.
Reporting on the Chicago controversy, a Washington Times headline this week read, â€œGun rights lawyer gives hope to liberal causes: 14th Amendment argument opens to gay rights, abortion.â€ Using whatâ€™s called the â€œincorporation doctrine,â€ 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 Rightsâ€™ 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 â€œright,â€ or that healthcare is a â€œright,â€ two concepts many liberal Democrats already subscribe to? States will be powerless to stop the invention of these and other new â€œrightsâ€ and completely at the mercy of federal judges. Reported the Washington Post: â€œJustice Stephen Breyer needled the majority about its rather situational view of federalism when it comes to â€˜incorporatingâ€™ the Second Amendment to make it binding on states rather than just the federal government. â€˜Without incorporation, itâ€™s decided by state legislatures,â€™ he said. â€˜With, itâ€™s decided by federal judges.â€
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: â€œLegitimate 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?â€
Iâ€™m not a constitutional scholar. In fact, Iâ€™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.
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 Foundersâ€™ constitution should not cheer its destruction by championing increased centralization over local control, federal dictates over statesâ€™ rights and â€œconservativeâ€ victories that are not.
The “Southern Avenger” Jack Hunter is a conservative commentator (WTMA 1250 AM talk radio) and columnist (Charleston City Paper) living in Charleston, South Carolina. See his blog.
Copyright 2010, The American Conservative