2nd Amendment Victory? An Opposing View

one thing not mentioned in the article nor the letters that followed was the fact that the federal Government also included the states AND the people. The congressional branch of Government represents the states (the senate was originally appointed by the various states and not by popular vote). So the Bill of rights also includes the states since ... See Morethe states are part of the representative form of government. The supreme court original was a circuit court, with each of the 9 justices actually riding the circuit they represent and hearing cases alone, not as a 9 member body. we have 9 circuit courts to this day and for a case to reach the supreme court now the presiding justice has to see the case first. The reason the President is picked by electors from each state also gives the states yet another hand in the federal government. The states acted together through the federal government and are as much a part of that government as is the congress, the judicial and executive branches. the 9 & 10 amendments made it clear anything not enumerated in the constitution was the rights of teh states and the people respectively. That limited the power of the federal government and left all other laws to be determined by the states and the people. that does NOT exclude the states and the people from the federal government which they had representation in.

As I have said before this court edict is at best a Pyrrhic Victory for gun rights. Its only a matter of time and political opportunity before congress makes uses of the now evermore entrenched(and necessary) "exceptions" to the 2nd amendment to effectively (thou not explicitly) ban guns everywhere.

If the 2nd amendment was 6 feet under before it's now an extra 2 or 3 feet even more deeply under the water.
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Chicago is already taking advantage of them: http://www.suntimes.com/news/cityhall/2458402,new...

It is very clear that the Bill of Rights was intended as a limitation on the Federal government only, not the States. I don't believe there can be an honest debate refuting this issue. The question then remains to be; whether or not the 14th Amendment "incorporates" the Bill of Rights and makes them enforceable upon the States. If that is the case, what “privileges and immunities” are you referring to that, "No State shall make or enforce"? The right to vote? That did not happen for Women, Blacks and American Indians until years later. The "right" to an abortion? The "right" to privacy? As I wrote in the article, not many people at the time of the debating believed that the 14th Amendment "incorporated" the Bill of Rights. It would have been made very clear if it was.

In his book “America’s Constitution”, Akhil Reed Amar, a firm believer in Federal supremacy in almost every situation, clearly writes about his interpretation of the Fourteenth Amendment:

“Nowadays, the Fourteenth Amendment’s second sentence (No State shall….) is the handiest constitutional tool in the judicial kit bag, a constitutional provision deployed in court more often than any other-more often, perhaps than all the others combined. As a formal matter, this single sentence has come into play in most of the major constitutional cases decided by the modern Supreme Court.”

He glowingly continues...”Today’s Court construes these words to safeguard a vast array of rights against the States-both substantive rights (like freedom of religion and expression) and procedural rights (such as criminal defendant’s entitlement to appointed counsel and trial by jury); both rights enumerated elsewhere in the Constitution (especially in the Bill of Rights) and unenumerated rights (most important, rights of privacy and sexual freedom); both political rights (paradigmatically the right to vote, hold office, and serve on juries) and nonpolitical civil rights (including rights of minors, aliens, and other nonvoters)”.

There is just no reasonable way that the Supreme Court could have interpreted the Fourteenth Amendment to include all of these “safeguards”. If one truly studies the history behind ratification of our Constitution they would behold a deeply held jealousy of States rights. The Constitution would never have been ratified if these men believed that the Federal government would usurp these powers from the States.

This debate can go round and round. We will never convince those who agree with Akhil Amar. Our modern Court has trampled the Constitution to near death and these folks cheer over the consolidation of the Union. However, the tide is turning. The people are awakening from their slumber and are beginning to understand the roots of our Constitution. Huzzah!

It is only a matter of time until these modern day Federalist are relieved of power once again and the Jeffersonian idea of government returns. The Tenth Amendment Center is the spearhead of the return. Huzzah!!!

Stephen - you should email us with the text of your comment so we can check our filters out! And, if you use a lot of links or certain language your comments are going to get stuck from time to time...

you missed the most obvious...most people do.

the 1st restricts congress because that is all it restricts. Why? Because the other branches do not pass laws - and the amendment is specifically referring to lawmaking capabilities, where other amendments and powers exercise include much more than just laws.

The other amendments restrict the other branches of the federal government as well.

But the founders themselves chose not to incorporate. how do you explain the absolute fact that, for example, James Madison wanted to incorporate the 6th amendment on the states right from the get go, and in the debates, the founders chose not to?

That, in and of itself, refutes much of your opinion here, which really - is just opinion - not based in historical fact. My apologies for being so blunt, but that is the case.

The first amendment is a restriction on Congress only, and means exactly what it says. There is no need to incorporate a protection against Congress making laws respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. This restriction on Congress is valid in all of the states and on behalf of all of their residents implicitly. The fact that some people misconstrue this plainly worded protection against Federal Government interference to imply a universal right to religion, free speech, a free press, peaceable assembly, or petitioning the Government for redress of grievances is another problem. Thomas Jefferson concurred with this view.

Here's how it should work: The ratified United States Constitution is an “as is” agreement. If a State finds that it cannot abide by the Constitution as is, they can freely dissasociate from the Union of States.

*Secession is Natural Right and a Reserved State Power according to the 9th and 10th Amendments. Nothing remotely related to Secession is mentioned anywhere in the Constitution and therefore it is a Power reserved to the States and People, end of story.

Because the Constitution, Laws, and Treaties made pursuant to it are the Supreme Law of the Land, there isn’t now and never has been any necessity “to incorporate” any part of the Constitution, forcibly onto the states. The wording of each clause defines its scope. Debates are just debates, the only thing that has legal importance is the ratified text.

1. The United States Constitution is the Supreme Law of the Land
2. Amendments to the Constitution when ratified are valid to all intents and purposes, as part of the United States Constitution.
3. The Bill of Rights (amendments 1-10) was ratified on December 15, 1791, and remains in force, having never been repealed or amended.

I found it strange that the United States Supreme Court thought that they needed to incorporate a clause of the Constitution that had been the Law of the Land since it was ratified in 1791. What they should have done was recognize that by means of the ratification process the States direct the Federal Government to establish the ratified clauses as the Law of the Land exactly as written.

The argument that they ratified the text without knowing what it said, or that the authors actually intended to write something other than what they wrote is equally strange.

Like Thomas Jefferson, I believe that the Constitution of the United States says exactly what it means, setting aside some a collection of bad ideas incorporated after the Bill of Rights.

I agree with this analysis of the decision. National Association for Gun Rights was much more cautious than Gun Owners of America in judging this ruling.

The founders envisioned a "United States", where states were groups of people who had like goals, interests, beliefs, religion and the like. They believed that the state legislatures should be left with the responsibility to make laws based on the constituents will. Each state drafted it's own constitution, and thus this state constitution whats the law binding the legislature of each state, to protect the rights of the citizens of the particular state.

The intent was, that you were closer to your state government than your federal government, and thus had a greater influence in the laws that were passed by your state. If you didnt like a law that was passed, well, you could vote with your feet, and leave.

The federal constitution was a limit only on what the federal government could do and gave it little or no jurisdiction over the sovereign individual.

Most states have constitutions that mirror the federal constitution and in some cases expand what rights are secured by a state constitution.

So, in the case of McDonald, the state supreme court should have had the final say in what the intent of police powers were, and it should have never been heard in the federal supreme court, because I believe that the federal supreme court did not have jurisdiction as this is not a 2nd amendment issue.

But our federal government is totally out of control, including the supreme court, so all bets are off.

That is the job of the editor - fixing now - thank you!

That discussion would have far more merit - and be more worthy of addressing.

Also, the author misquotes the 14th amendment. It does not have a privileges and immunities clause. It has a privileges or immunities clause. Text matters.

Even if the bill of rights was not intended to guard against abuses by the state governments, surely the 14th amendment was.

Right, while I cannot agree with Lincoln's war or the reconstruction acts, I would say that the South got what it deserved for it's oppression of a people different from them. I believe that slavery and Lincoln's tyranny are elephants in the room that moral cowards refuse to acknowledge, so we end up dancing around all this and try to apply contradictory parts of what is now considered the US constitution which only makes things worse.

Article 4, Section 4 of the US constitution...The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Folks, to say that the 14th amendment is even legitimate in the first place is to say that the whole constitution is meaningless and it's limits dependent only something to be observed until such time as enough force may be used to compel one party to comply with another party's desires. The 14th was ratified by forcing certain states to do so or else continue to be held as occupied territories.
To say that the 14th can coexist with the Article 4, Section 4 guarantee and the tenth amendment is to have an instrument that can be used to justify all sorts of police laws enacted by the federal government depending upon who is in power. It also denies the people's inalienable rights of the 9th amendment to always be free to choose that form of governance as they would consider best to adopt for their happiness. The ninth is where the right of the people to form their own polity and secede from the union resides, at least legally.

Thank you for putting together this essay Mr. Montes. I really appreciate it.

Alan
Thanks for the input.

Your argument that the purpose of the 14th amendment was to secure a 'whole font' of liberties stretches the language of the 14th amendment FAR beyond what it says and flies in the face of the history and timing of the amendment. It's a virtual re-write of the US Constitution and is not supported by the wording of the amendment at all.

Jacob Howard may have believed the BoR was applied to the states by the 14th amendment but that, in no way, is the end of the inquiry. It's just one guy's opinion and his opinion was that it SHOULD do what you claim - not that it actually did it.

The first draft of the 14th amendment read as follows:

"No discrimination shall be made by any State, nor by the United States, as to the civil rights of persons, because of race, color, or previous condition of servitude.” Rep. John A. Bingham (OH)

So, do we go with Bingham's idea or Howard's idea? I suggest we go with the wording that was adopted.

The phrase 'privileges and immunities' DOES have a long standing meaning that goes back to the Articles of Confederation and is NOT, as you claim, the same as "rights and liberties." It has to do with the rights of citizens of one state when traveling in another state. It became a term of art and that is why it was used instead of 'rights and liberties' or a similar, broad term. This fact alone is fatal to your argument.

A careful reading of the 14th amendment and the history surrounding it reveals it to be intended as an effort to secure a form of citizenship for former slaves.

Also why even have the 10th amendment if 1 - 9 don't apply to the states? If 1-9 didn't apply to the states the 10th would just say that the states can do whatever they want, override/ignore any amendment they want.
But what it does say is "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." It specifically says that the constitution can prohibit powers to the states ("nor prohibited by it to the States"), thus showing the first 9 do apply to the states.
All of the bill of rights are freedoms granted to all citizens of the US not matter what state you live in.

So if you suggest that the second amendment applies only to the federal government and not to the states, do you also believe that all other amendments 1, 3 - 9 also apply only to the federal government, thus allowing the states to restrict speech, press, religion, force the housing of soldiers, allow illegal search and seizure etc. Of course you don't believe the states should be allowed such power. No governemnt, state, local or federal should be able to restrict these freedoms else they will be a tyrannical government , the very thing the bill of rights was hoping to stop.

The right to bear arms might refer to the right of the people to own firearms but it may not prohibit a governments regulation how those are used. A government can tell people not to fire straight up in the air, use it wrecklessly that would endager the lives of others, and so forth but it may not confiscate or determine what kind of firearm can be owned. That should be a good compromise between the gun haters and the gun owners that I think everyone can live with.

Thanks for a great (and brave) post!

To me, it's clear that the BoR was not originally intended to apply against the States. Instead, they were intended to apply against the new federal government. The only issue is whether the 14th amendment changed that.

If the 14th amendment had been intended to change that very fundamental issue, don't you think that fact should have been made clear in the language of the amendment itself? Given the history and timing of the 14th amendment and the writings before and immediately after its adoption, I've concluded that it was passed in response to the issue raised by the Dred Scott decision and was intended to give US citizenship to former slaves. That's it. Nothing more. These people are now 'citizens' of the USA with all the 'privileges and immunities' and all the due process rights that other citizens had at that time.

If the purpose of the 14th amendment had been to change the original idea of the Constitution and make the BoR applicable as against the States, surely the language could have been made more clear. For example, why not simply say that the first 8 amendments apply as against the states?

Further, it's helpful to keep in mind the fact that the US Constitution specifically addresses the issue that states must guarantee a "republican" form of government in Article IV, sec. 4. Wouldn't that be the perfect place to add language indicating that the BoR applies as against the States?

In other words, the 14th amendment simply has nothing to do with gun rights. For that issue, you either have to amend the US Constitution or you will have to look at the constitution of the state in question. If the people of a given state have not expressly given their state the power to regulate guns, then they retain that right as one of the fundamental "natural" rights of man.

Here's what the Illinois State Constitution says about gun rights:

"SECTION 22. RIGHT TO ARMS
Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be
infringed. "

So, the phrase 'police power' should have been the focus of the issue in the McDonald case.

Finally, the fact that apparently 4 of the justices believe the 2nd amendment doesn't prohibit government from outlawing private gun ownership is simply amazing and shows how far off base the Supreme Court has gotten. FWIW, I'd love to see a Constitutional amendment that cleaned up the language in the 2nd amendment (mostly getting rid of the reference to militia).

(BTW, I'm a gun owner and STRONG believer in the right to bear arms.)

Rick, you have correctly highlighted the bigger problems we have with this abusive and tyrannical federal government that our state leaders have unfortunately allowed to rule over every minuscule aspect of our lives. Yours is the first, and only, posting I have seen that correctly points out the fallacy and dangers of this flawed ruling. Thanks for sounding the alarm.