Imagine your favorite college basketball team playing for an elusive National Championship. But sadly, your beloved Wildcats trail by two points with only a second remaining on the clock, and the Blue Devils have possession of the ball. Defeat seems inevitable.
Until the referee intervenes.
Suddenly, the man in stripes adds a full three minutes to the game clock. The official cites a painfully convoluted rule interpretation, claiming the authority to adjust the clock under specific, yet amazingly vague situations. Your Wildcats take full advantage of the extra time and pull out an 87-85 victory.
Now, do you celebrate the victory? Or do you mourn the irreparable damage to the integrity of the game? Do you trumpet the win? Or in the back of your mind, do you realize it wasn’t a legitimate victory?
And when that same ref hoses your team next year, on what basis will you protest?
You simply can’t destroy the integrity of the game, and then complain when nobody respects the integrity of the game.
A recent appellate court ruling overturning an Illinois ban on conceal carry creates a similar dilemma for liberty lovers, though many probably don’t even realize it.
In a 2-1 decision, the U.S. Seventh Circuit Court of Appeals ruled the state prohibition on carrying firearms outside the home unconstitutional, based on the Second Amendment.
“We are disinclined to engage in another round of historical analysis to determine whether eighteenth-century America understood the Second Amendment to include a right to bear guns outside the home. The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside,” the judges ruled.
Conservatives and libertarians cheered the ruling, counting it as a great victory for the Second Amendment. But lost in the din of applause, an important question: does the federal government possess the power to regulate state gun laws through the Second Amendment?
Despite a series of court cases running back to the 1920s, under the original Constitution and a proper understanding of the Fourteenth Amendment, it does not. And while the ruling may seem like a great victory in the war against tyranny, in reality, it undermines the integrity of the U.S. system, and erodes the most basic principles of liberty and the rule of law.
Allowing the federal government to regulate state laws through the Bill of Rights destroys the very constitutional structure that liberty activists and conservatives claim to revere. It obliterates state sovereignty, and turns the system the framers envisioned and created on its head. It centralizes power and opens the door for an all-powerful national government, relegating the states and the people to mere spectators, subject to the whims of the D.C. powerbrokers. Sure – it’s nice that you won this one little victory. But what the master giveth – the master may taketh away. The victory rests on and solidifies a precedent that has and will continue to wreak havoc on individual liberty.
Americans need to wrap their minds around a most basic truth: THE CONSTITUTION DOES NOT GIVE US RIGHTS.
We already possess rights. The Constitution created a federal government. Through the Constitution, the people of the states delegated that government limited enumerated powers. In order to ensure that the federal government they created did not threaten their rights, the people of the states insisted on a Bill of Rights. The first ten amendments do not confer rights. They simply further define the limited nature of the federal government. The preamble to the Bill of Rights makes this clear.
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.
Notice that the preamble references only the government instituted by the Constitution – the federal government. It makes no mention of state governments. In fact, the state ratifying conventions had no intention of restricting their own powers. They already had state constitutions to do that job.
This understanding remained unchallenged until after the War Between the States. In fact, Chief Justice John Marshall, generally a friend of nationalized power, affirmed that the Bill of Rights does not operate on state governments in Barron v. Baltimore (1833). The case revolved around the application of the Fifth Amendment in a state court case.
The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes.
If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states. In their several constitutions, they have imposed such restrictions on their respective governments, as their own wisdom suggested; such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest.
Legal scholars will argue that the 14th Amendment changed all that, “incorporating” the Bill of Rights into the states.
This rests on a misunderstanding of the actual intent of the 14th Amendment.
The amendment was actually drafted to constitutionalize the Civil Rights Act of 1866. Many feared that future congresses could overturn the act, granting the basic rights of citizenship to newly freed slaves, if those rights weren’t enshrined in the Constitution. The 14th Amendment was the result of their efforts. As a result, the provisions of the Civil Rights Act govern the meaning of phrases like “privileges and immunities” and “due process.”
A look at the way proponents explained the amendment makes this clear.
Sen. Lyman Trumbull (Ill.) guided the 14th through the Senate. In a speech in Chicago as the amendment was being debated, he “clearly and unhesitatingly declared Sec. 1 of the Amendment to ‘be a reiteration of the rights as set forth in the Civil Rights Bill.’” Martin Thayer (R-Pa.) declared, “It is but incorporating in the Constitution the principle of the civil rights bill which has lately become a law.” Indiana Senator Henry Smith Lane reaffirmed Trumbull’s views, as did several other congressmen addressing their states. West Virginia Rep. George Latham said, “The civil rights bill, which is now a law…covers exactly the same ground as the amendment.” Howard Jay Graham, an advocate of an abolitionist reading of the amendment said, “Virtually every speech in the debates on the amendment – Republican and Democrat alike – said or agreed that the amendment was designed to embody or incorporate the Civil Rights Act.”
Proponents of a broader reading to the 14th will point to amendment drafter Rep. John Bingham. He clearly favored incorporating the Bill of Rights into the states.
Except when he didn’t.
Historian Wallace Mendelson, a 14th Amendment scholar, noted, “Bingham is one who used ringing rhetoric as a substitute for rational analysis.”
In fact, Bingham was all over the place. On the one hand, he did indeed argue for an enforcement of the Bill of Rights on the states. On the other hand, he argued vehemently against inclusion of the phrase “civil rights and immunities” in the 1866 Civil Rights Act, saying it could be interpreted to strip rights from the states. He was afraid the bill would empower to federal government to force his state of Ohio to enfranchise blacks.
As much as northern states wanted to protect the basic rights of freed slaves (the first part of the 14th guaranteed them citizenship), they certainly did not want to give up their own sovereignty and power. Bingham himself conceded this point.
“The care of the property, liberty and the life of the citizen, under the solemn sanction of an oath imposed by your Federal Constitution, is in the States, not in the Federal Government. I have sought to effect no change in that respect in the Constitution of the country.”
Bingham’s desires not-withstanding, the purpose of the 14th was to ensure the protection of a specific set of rights to new black citizens – not an incorporation of the Bill of Rights. The northern states weren’t about to give up their sovereignty to the federal government. Had that been the understanding, they would never have ratified it. In fact, many proponents argued that the Civil Rights Act wouldn’t even have any affect in the North.
So, what were these privileges and immunities guaranteed by the 14th Amendment? As defined by the Civil Rights Act of 1866, they included the right to enter into contracts, own property, inherit property, travel freely and access to the courts. The right to due process, in a nutshell, guaranteed procedural fairness for all people.
In the Slaughterhouse Case, decided shortly after ratification of the 14th, the Supreme Court affirmed this understanding of the amendment.
Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress Shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?
All this and more must follow if the proposition of the plaintiffs in error be sound…. [T]he effect is to fetter and degrade the State governments by subjecting them to the control of Congress in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character….
We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.
In fact, it wasn’t until 1925, some 57 years after ratification of the 14th, that the Supreme Court mystically found that the amendment bound the states to the Bill of Rights.
Early Americans wisely feared centralized power. They fought a long, bloody war to free themselves from the tyranny of England. So, they created a general government with limited, specifically prescribed authority, and left the bulk of power at the state level. They recognized a simple reality – the people can better exercise control and protect their rights in a decentralized system, with powers dispersed and checked.
Centralized power possesses great allure. It seduces us with a Siren song and tempts us with an easy fix. We find it simpler to wield federal power and force all of the states to fall in line than fight battles in all 50 states. But how quickly we forget, once we take the power genie out of the bottle, we can never put her back. Once we set the precedent that one group can wield centralized authority to get its way, we open the door for every group to use the same tactics. And we quickly find that most don’t have our best interests at heart.
Simply put: the usurped power you allow for today because it serves your agenda will certainly end up turned against you down the road. And since you’ve destroyed the integrity of the system, you have no recourse other than to scream and cry in frustration. Those of you excited about the gun ruling in Illinois should stop and think about all of the havoc inflicted by the judiciary over the last 100 years because it absolutely refuses to respect Constitutional restraints on federal power.
Take for example Missouri v. Jenkins. In a 5-4 decision, the Supreme Court basically ruled a federal court can force a local government to raise taxes to collect money to cover the cost of programs designed to correct de facto segregation. The feds can even force this tax increase even if it violates provisions of the state constitution. And during the 1970s, liberal legal scholars hoped the Warren Court would find a constitutional right to a “minimum income.” Law professor David Bernstein argues that had it not been for Nixon appointing several more “conservative” judges, the Supreme Court very well might have entrenched the welfare state in the morass of modern constitutional law.
So, yes, liberty lovers got a win this time on guns. But that victory rests on the same reasoning that very nearly gave us a constitutional right to some arbitrary wage and the notion that the feds have the power to control local taxes. Your win comes at a cost. You are now ultimately subject to the whim of five politically connected lawyers.
So, do we simply sit back and allow state governments to trample our right to keep and bear arms? Of course not. We wield the Second Amendment to keep the federal government at bay, and we work through our state Constitutions to protect our rights within the borders of our state. Every state Constitution in the U.S. has some provision protecting the right to bear arms except New York, Maryland, Iowa, Minnesota, California and New Jersey. (You folks should get busy remedying that.) Many utilize the exact same language as the Second Amendment. Other feature restrictive stipulations delegating some regulatory power to the state legislature. But that simply means the people of the states must work diligently to ensure their representatives respect and protect their rights, and abide by their state constitutions.
Ultimately, we should not leave the protection of our rights to any judge or government, particularly some large, centralized power structure. We shoulder the responsibility for protecting our rights. We simply cannot depend on a judge’s ruling – especially when that ruling bastardizes the entire system. We must focus our effort through the proper authority based on the constitutional delegation of power. A pragmatic appeal to centralized authority to “protect us” might yield a victory. But remember, Japan won Pearl Harbor, but it lost the war.
“Who will govern the governors? There is only one force in the nation that can be depended upon to keep the government pure and the governors honest, and that is the people themselves. They alone, if well informed, are capable of preventing the corruption of power, and of restoring the nation to its rightful course if it should go astray. They alone are the safest depository of the ultimate powers of government. – Jefferson
Latest posts by Mike Maharrey (see all)
- Federalist #2: A Plea to Preserve the Union - May 24, 2015
- A Constitutional Lesson for Ignorant Colorado Sheriffs - May 21, 2015
- Federalist #1: Setting the Stage - May 18, 2015