Commentators and journalists sometimes describe the current U.S. Supreme Court as “conservative.”  But that’s not true if your definition of a conservative justice is a traditional or “originalist” jurist—that is, one who applies the Constitution as the American people understood it when they adopted it.

Consider, for example, the Court’s latest First Amendment case.  The Court utterly disregarded the true meaning of that amendment, and instead applied a rule almost entirely unrelated to it.

The case was Snyder v. Phelps.  The father of a deceased U.S. Marine brought a suit under state common law against some members of the notorious Westboro Baptist Church.  As you may have learned from news sources, the Westboro Baptist Church is a tiny congregation with extreme anti-homosexual views.  The members regularly picket the funerals of soldiers, displaying signs that attack the military, the United States, and the innocent deceased.

Church members did so in this case, parading hateful signs on public property near the funeral.  They also launched unfounded personal attacks against the deceased both at the funeral and over the Internet. The serviceman’s father was so devastated emotionally that he sued them for damages, relying on claims for intentional infliction of emotional distress and for several other common law torts (civil wrongs).  The jury found that the father had been deliberately injured, and awarded him damages.

The church members demanded that the verdict be set aside.  They argued that the First Amendment Free Speech Clause protected them from liability.

Now whatever you think about Westboro Baptist or the father’s lawsuit, the fact is that the First Amendment, properly understood, was simply irrelevant to the case.  The issue should have been a slam dunk for the Court.

The text of the Free Speech Clause reads, “Congress shall make no law . . . abridging the freedom of speech.”  That is, the Amendment restricts actions of Congress.  Unlike other parts of the Bill of Rights, it applies only to the federal legislature, not to other branches of government.  It does not affect the common law, a system of case-by-case precedent built up by judges and juries over the years—a system expressly recognized as legitimate in other parts of the Constitution and Bill of Rights.

Moreover, the First Amendment says absolutely nothing about the states—and, in fact, during the 19th century the Court correctly held that the federal Bill of Rights controls only the federal government.  (States are bound by their own constitutions’ bills of rights.) True, some scholars argue that the later-adopted Fourteenth Amendment applied the First Amendment to the states, although others argue the contrary.  But the Supreme Court has never persuasively explained why it thinks the Fourteenth Amendment imposed the First on the states.  And even it did, that would bind only their legislatures, the state analogues of “Congress.”  It would not affect the common law.

There’s more: Although you would never know it to read Supreme Court First Amendment decisions, the Founders actually meant something by the phrases “freedom of speech” and “freedom of the press.” Those phrases had specific content.  What they meant is explained more fully in my book, The Original Constitution.  But what is important here is that they did not prevent civil lawsuits by innocents for harm inflicted by irresponsible people. Among those saying so during the debates over whether to ratify the Constitution was James Wilson, one of the greatest of the Founders.  (Wilson was a Framer, a leading Ratifier, and a distinguished lawyer whom George Washington later appointed to the Supreme Court.)

And as if that were not enough, during those debates the document’s supporters represented that tort and contact cases generally remained outside the federal sphere and were reserved exclusively to the states.

Yet in the teeth of text, law, and history, the Court held that the First Amendment prevented the serviceman’s father from collecting a dime.

How could this be?

During the Twentieth Century, “progressive” justices, ignoring text, law, and history, invented new First Amendment rules out of thin air.  In the 1960s and ‘70s, over the strenuous objections of moderate justices (there were no conservatives then on the bench), progressives largely re-wrote the defamation law that states had applied for two centuries.  In the course of their activity, they virtually destroyed the cause of action family members previously could use against those who maliciously “blackened the memory” of the deceased.  That may be why the family in this case resorted to claims such as intentional infliction of emotional distress.

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If we had any consistently originalist justices on the Court today, they would have voted to overrule the 1960s/70s decisions as a form of usurpation.  In other words, they would have applied the Constitution as the people adopted it.  Instead, in Snyder v. Phelps all the justices applied the 1960s/70s decisions.  There was only one dissenter, Justice Alito, but he merely disagreed as to how to apply them.

Last year when the Left was outraged because the Court struck down some restrictions on corporate participation in politics, I pointed out that the Court was just following the rules that “progressive” activists had invented throughout the Twentieth Century.

That’s what the justices did in the Snyder case, also. Far from the Court being conservative, the fact is that today there is not a single sitting Supreme Court justice who is a consistent originalist—not one.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. (See www.umt.edu/law/faculty/natelson.htm.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado’s Independence Institute.

It has been said that eternal vigilance is the price of liberty. This is especially true when it comes to gun liberty, since there are many organizations and government officials in “the land of the free” that would like nothing better than to disarm or severely limit the gun rights of law-abiding American citizens. The recent pro-gun decision in the Supreme Court case of McDonald v. City of Chicago doesn’t change our need for due diligence when it comes to gun liberty.

The McDonald Case

In a 5-4 decision written by Justice Alito, the Supreme Court reversed and remanded a ruling by the Court of Appeals for the Seventh Circuit that upheld a District Court ruling against a challenge to the city of Chicago’s draconian gun laws that have effectively banned handgun possession by almost all residents of the city since 1982. Naturally, Chicago’s murder rate has increased since the gun ban was enacted, and the city now has one of the highest murder rates in the country. Yet, Chicago mayor Richard Daley, a strong gun-control proponent, said the city “will publicly propose a new ordinance very soon” that will attempt to restrict gun ownership in a manner that doesn’t violate the Supreme Court decision. The District Court is expected to take up the case again later this summer.

Alito was joined in full by Justices Roberts, Scalia, Kennedy, and for the most part by Justice Thomas. At fifty-six pages, Thomas’s concurring opinion is longer than the majority opinion. Scalia also had a concurring opinion, but mainly to respond to the dissent of Justice Stevens. Another dissenting opinion was written by Justice Breyer, joined by Justices Ginsburg and Sotomayor.

The plaintiffs in the case argued that the Chicago gun laws violated the “privileges or immunities” clause of the Fourteenth Amendment and that the Amendment’s “due process” clause incorporates the Second Amendment’s “right of the people to keep and bear arms.” In reversing the decision of the Court of Appeals, the Supreme Court rejected the former argument and accepted the latter one, thus ruling that the Second Amendment, which protects an individual right to keep and bear arms, as the Court ruled in Heller (2008), applies to the states.

The Incorporation Doctrine

The issue of incorporation is a complicated and sometimes controversial one. I have written at length on this subject in “The Kelo Decision and the Fourteenth Amendment.”

The Second Amendment was adopted because, as Justice Alito quoted from the Heller decision: “During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric.” Before 1820, thirteen states had also adopted state constitutional provisions that protected an individual right to keep and bear arms. Several States did have laws that restricted firearm ownership to those who were free men and did not pose a “danger of public injury”

The Bill of Rights was originally designed to apply only to the federal government. Writing in Barron v. City of Baltimore(1833), Chief Justice Marshall pointed out that the first eight amendments were added to the Constitution because of concerns about the extent of federal power. Marshall held that if “the framers of these amendments intended them to be limitations on the powers of the state governments, they would have imitated the framers of the original constitution, and have expressed that intention.” Often forgotten is that the Bill of Rights had a preface:

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 insure the beneficent ends of its institution.

In three nineteenth-century cases before the Court—U.S. v. Cruikshank (1876), Presser v. Illinois (1886), and Miller v. Texas(1894)—it was affirmed that the Second Amendment only applied to the federal government. And it should be pointed out that the right to keep and bear arms was widely protected by state constitutions at the time of the ratification of the Fourteenth Amendment.

Beginning with the case of Gitlow v. New York (1925), where the Supreme Court ruled that a New York law violated the free speech clause of the First Amendment because that part of the First Amendment was incorporated into the Fourteenth, the Supreme Court began to selectively incorporate certain elements of the Bill of Rights into the Fourteenth Amendment via the “due process” clause. With the incorporation of the Second Amendment in the McDonald case, this only leaves four things that have not been incorporated: the Third Amendment’s protection against quartering of soldiers, the Fifth Amendment’s grand jury requirement, the Seventh Amendment’s right to a jury trial in civil cases, and the Eighth Amendment’s prohibition of excessive fines.

The inclusion above of the Fifth and Eighth Amendments, which each contain more than one subject, shows that the Supreme Court’s incorporation doctrine can encompass just part of an Amendment. And not only that, the Court applies two things from the Sixth Amendment differently against the states than against the federal government. First, the appointment of counsel is required in all federal criminal cases in which the defendant is unable to afford an attorney, but is only required in state criminal cases where lack of counsel results in a conviction lacking in “fundamental fairness.” And second, a unanimous jury verdict is required in federal criminal trials, but not in state criminal trials. Although the whimsical nature in which selective incorporation of amendments and parts of amendments was carried out during the twentieth century has led some—including this writer—to question the whole concept of incorporation, it is a firmly established doctrine that, like judicial review, has become a permanent fixture of the Supreme Court.

That the respondents in the McDonald case, as well as the four dissenting justices, oppose the incorporation of the Second Amendment shows, as Jacob Hornberger recently pointed out, the hypocrisy of liberals. No liberal—on or off the Supreme Court—ever had a problem with the incorporation doctrine when it came to First Amendment rights or the rights of the accused. Liberals are all of a sudden arguing against incorporation because they are anti-gun.

Although agreeing with the Court that the Second Amendment applies to the states, Justice Thomas makes a good argument that the right to “keep and bear arms” applies to the states through the “privileges or immunities” clause.

The Second Amendment

The Second Amendment to the Constitution has engendered more controversy than any other Amendment except perhaps the Fourteenth. It’s twenty-seven words read: “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.”

The dissenting opinion by Justice Breyer in McDonald seeks to revisit the Supreme Court’s ruling in Heller that the Second Amendment protects an individual right to keep and bear arms. Breyer has evidently never gotten over it. He still tries to maintain that the Second Amendment relates primarily to the states’ ability to maintain a militia. First of all, he is just plain wrong. Among other things, “the people” are also mentioned in the First, Fourth, Ninth, and Tenth Amendments. Are we to believe that “the people” means something different in the Second Amendment? The militia referred to citizens who owned guns. There were no police forces, National Guards, or standing armies. Secondly, the Second Amendment is about a right that is already assumed to exist. The amendment recognizes a right; it does not grant a right. The Bill of Rights was never intended to give Americans rights; it was designed to protect their rights from infringement by the new and powerful central government under the Constitution. And third, even if the Second Amendment was not in the Constitution or did refer only to the states’ ability to maintain a militia, it would not affect Americans’ right to keep and bear arms one iota. All men have a natural and moral right to arm themselves for hunting, sport, or self-defense against aggression by other men or governments.

Justice Breyer even has the audacity to invoke the principal of federalism as a reason why the Fourteenth Amendment shouldn’t incorporate the Second. Incorporation would “amount to a significant incursion on a traditional and important area of state concern,” says Breyer. The federal relationship that exists between the states and the central government is an important one. Federalism and decentralization are bulwarks of liberty against the tyranny of the central government. But since when was Justice Breyer, or the other justices who joined him in dissent, or the respondents in McDonald, or Mayor Daley, or any liberal in favor of gun control concerned about limiting the power of the federal government? These people are just flat out against gun liberty.

The libertarian and decentralist perspective on the Second Amendment is a simple one: The Federal government may not infringe upon anyone’s right to keep and bear arms, period. There should be no federal restrictions, federal registration, federal background checks, federal banning of certain weapons, or other federal infringements of the right of the people to keep and bear arms. This means that it is on the state level—per the Tenth Amendment—that we should be arguing the pros and cons of restricting the gun ownership of certain convicted felons, non-citizens, the mentally ill, etc., lawful gun types, usage, ammunition, etc., and any other type of regulations. To what extent the federal government should intervene in state gun laws is entirely another matter.

McDonald and the Prospects for Gun Liberty

Because the Tenth Amendment is a dead letter—and the Constitution too it seems most of the time—the McDonald decision, at least in the short run, is good for gun liberty. However, like the Heller case, I have mixed feelings about the Supreme Court’s decision in McDonald.

Writing for the majority, Justice Alito makes it perfectly clear that although Chicago’s gun ban may not be constitutional, most of the existing gun regulations that do infringe upon the right of the people to keep and bear arms will continue:

It is important to keep in mind that Heller, while striking down a law that prohibits the possession of handguns in the home, recognized that the right to keep and bear arms is not a “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperial every law regulating firearms.

Noted in the decision was a brief (Amici Curiae 23) filed by thirty-eight states on behalf of the petitioners that “state and local experimentation with reasonable firearms regulations will continue under the Second Amendment.”

It is because of the Supreme Court permitting infringements on the right to keep and bear arms that some gun-control advocates reacted favorably to the McDonald decision. Mayor Bloomberg of New York City optimistically remarked that the Court’s decision shows “we can work to keep guns out of the hands of criminals and terrorists while at the same time respecting the constitutional rights of law-abiding citizens.” Jackie Hilly, the Executive Director of New Yorkers Against Gun Violence, is pleased with the decision. Says Hilly:

All the other amendments have reasonable restrictions on them. So I actually really like the Heller decision and the McDonald decision because they put the Second Amendment in the context of all the other amendments… people from the gun lobby like to promote the idea that you have an absolute or god-given right to possess a gun. That’s clearly not true; your right can be restricted.

Mayor Daley is already expected to demand registration of all handguns, mandatory training for gun owners and a limit of one handgun per person. There is nothing in Heller or McDonald that necessarily prohibits broad anti-gun measures requiring training courses, gun and/or ammunition registration, liability insurance, fingerprinting, guns to be kept unloaded, trigger locks, gun registries, waiting periods, background checks, the banning of “assault” weapons, high-capacity magazines, automatic weapons, sawed-off shotguns, and limitations on the type and amount of ammunition.

But an even greater danger is the potential for the future federalization of all gun laws due to the further erosion of federalism because of the incorporation doctrine. Congress and the federal agencies it has created have already federalized a host of ordinary street crimes already covered by state criminal codes.

Conclusion

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As much as the McDonald decision is a victory for residents who want to defend themselves in Chicago and other municipalities with draconian gun laws, this decision also makes it clear that our rights are not natural and absolute. They are subject to the whims of the current members of the Supreme Court.

In view of the McDonald and Heller decisions and the myriad of federal, state, and local gun restrictions and regulations, we might rephrase the Second Amendment this way:

The right of the people to keep and bear arms shall not be infringed by the federal government, except by federal laws that infringe upon that right which are approved by the Supreme Court. The right of the people to keep and bear arms shall not be infringed by the state governments, except by state laws that infringe upon that right which are approved by the Supreme Court.

On page 23 of the McDonald decision, Justice Alito mentions how after the Civil War “the laws of some States formally prohibited Blacks from possessing firearms.” He gives an example of a law in Mississippi that forbade a Negro not in the military and not licensed by his county to “keep or carry fire-arms of any kind.” Does not the same thing exist today for all races in some parts of the United States?

Thomas Jefferson once wrote that “the natural progress of things is for liberty to yield and government to gain ground.” This is especially the case with gun liberty. The price of absolute gun liberty is indeed eternal vigilance.

Laurence M. Vance [send him mail] writes from Pensacola, FL. He regularly contributes articles and book reviews to both secular and religious periodicals.

Copyright © 2010 Campaign for Liberty

The recent Supreme Court case, McDonald v. City of Chicago, has gun rights advocates celebrating. The National Rifle Association and the true champion of gun rights, Gun Owners of America, are hailing this as a landmark decision. As an avid gun enthusiast, collector, NRA Member and Pistol Instructor and life time member of GOA, I am deeply troubled. Let me explain why.

The Bill of Rights, including the 2nd Amendment, were never intended as a check on the powers of the States. They are intended as a check on the Federal government ONLY. The Preamble of the Bill of Rights opens with: “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”. Prevent misconstruction or abuse of power from what? The Federal government of course!

In the Supreme Court case Barron v. Baltimore 32 U.S. 243 (1833), Chief Justice Marshall stated: “But it is universally understood, it is a part of the history of the day, that the great revolution which established the Constitution of the United States was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen who then watched over the interests of our country deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the General Government — not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress and adopted by the States. These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them”.

Can’t be much clearer. The Bill of Rights, including the 2nd Amendment, are restrictions against the Federal government NOT the States.

Why then has supposedly Conservative Justices voted to expand the power of the Federal government by interfering in a clearly State matter? How did they come to their conclusions? Well, they would argue and have argued that the Fourteenth Amendment changed everything and made the Bill of Rights enforceable on the States. But does it? So many Supreme Court Justices, lawyers and supposed Constitutional Scholars agree that it does, so therefore, it does! But are they correct? Lets take a look. Here is the first section of the Fourteenth Amendment:

Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Why was this Amendment passed? Well, it was ratified July 9, 1868 a few years after a bloody war. Some of the Southern States were trying to find ways to basically undue the 13th Amendment which freed the slaves. Laws were being passed that kept Black’s from enjoying their newly won freedom. The Fourteenth Amendment was passed to protect the rights of a recently enslaved people who were not considered citizens. This Amendment bestowed United States citizenship (different from State citizenship) on them. The Fifteenth Amendment, ratified nearly two years later, then bestowed upon them the right to vote.

Don’t take my word for it, here is Justice Henry Billings Brown in his majority Plessy v. Ferguson (1896) opinion:

“…but it was said generally that its main purpose (the 14th Amendment)was to establish the citizenship of the negro, to give definitions of citizenship of the United States and of the States, and to protect from the hostile legislation of the States the privileges and immunities of citizens of the United States, as distinguished from those of citizens of the States.” He goes on…“The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.”

Now, just hold on all of you who are going to argue about this horrible, racist decision that upheld separate but equal laws. I add this because it shows a Supreme Court Justice’s understanding of what the 14th Amendment meant.

Next, another Supreme Court decision that lets us know what the true intent of the Fourteenth Amendment was:

The Slaughter House Cases (1873)

Justice Samuel Freeman Miller who was appointed by none other than Abraham Lincoln wrote extensively on the meaning of the 14th Amendment, particularly the “Privileges or immunities” clause. In his Slaughterhouse opinion he writes: “…We think this distinction and its explicit recognition in this amendment (14th) of great weight in this argument, because the next paragraph of this same section (1st paragraph, section 2), which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States. The argument, however, in favor of the plaintiffs rests wholly on the assumption that the citizenship is the same, and the privileges and immunities guaranteed by the clause are the same. He goes on….”Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the State, and what they respectively are, we will presently consider; but we wish to state here that it is only the former which are placed by this clause under the protection of the Federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment.”

An Abraham Lincoln appointee none the less!

So, what does this all mean? We have been hoodwinked by the Federal government and its minions in the Supreme Court. The Federal Frankenstein Monster continues to usurp power at the expense of the State governments and supposed Conservatives are marching in tune. They have drank the Kool-Aid and now believe in National Socialism.

We don’t want or need a Federal government interfering in a States right to regulate firearms. Remember, if Obama gets to pick a few more Justices a 5-4 majority could switch the other way and the Supreme Court could rule that the Federal government has the right to ban all firearms. Then what? The States were and should be the defenders of your individual freedoms. They did long before the current Constitution was in force. Here are some State Constitutions:

Virginia (1776)

SEC. 13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

New York (1777)

XL. And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service. That all such of the inhabitants of this State being of the people called Quakers as, from scruples of conscience, may be averse to the bearing of arms, be therefrom excused by the legislature; and do pay to the State such sums of money, in lieu of their personal service, as the same; may, in the judgment of the legislature, be worth. And that a proper magazine of warlike stores, proportionate to the number of inhabitants, be, forever hereafter, at the expense of this State, and by acts of the legislature, established, maintained, and continued in every county in this State.

Massachusetts (1780)

Art. XVII. The people have a right to keep and to bear arms for the common defense. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority and be governed by it.

Connecticut:

SEC. 15. Every citizen has a right to bear arms in defense of himself and the state.

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If the citizens of the Peoples Republic of New York allow their elected officials to trample our rights. Shame on us for not trying to defeat them. But if the people of Vermont and Alaska, Montana and Tennessee want to allow their citizens to own machine guns and carry firearms openly, thank God! Who is the Federal government to tell them they can’t? The Supreme Court decision in Mc Donald v. Chicago is just plain wrong and all Conservatives and Gun lovers who support this should rethink it.

If the States can’t make their own laws concerning Firearms then where does it end? The Federal government will and does dictate every aspect of your lives. The air you breathe, the food you eat, the company you keep and so on and so on. Let’s not be allured by the siren song of the Supreme Court and their supposed defense of our right to keep and bear arms. It’s none of their business. They are leading us right to the rocks and destruction.

Rick Montes [send him email] is the state chapter co-coordinator of the New York Tenth Amendment Center

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 “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.

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

Kevin Gutzman, best-selling author and expert on American Constitutional history, discusses the 14th Amendment and the Incorporation Doctrine, how the doctrine has given us government by judiciary instead of government by representation, the Due Process clause, Substantive Protections vs. Due Procedure, the original intent of the 14th Amendment, how the courts changed that meaning over the ensuing five decades, the Bill of Rights as a limitation on the power of Congress, how the incorporation doctrine has turned the principles of federalism on its head, representative government vs. government by “experts,” Privileges or Immunities and The Slaughter-House Cases, rights of State citizenship, how James Madison warned that those in government would tend to use and expand power, some of the greatest violations of the Constitution under the doctrine of incorporation, why federalism and decentralization is a better system to secure liberty, and more.

Mentioned in this Show

KevinGutzman.com

The Politically Incorrect Guide to the Constitution

Who Killed the Constitution

Virginia’s American Revolution

Slaughter-House Cases

Lawrence v Texas

Since the days of Ronald Reagan and Edmund Meese, the Republican Party’s position has been that judges should be bound by the people’s understanding of a particular constitutional provision at the time they ratified it.  This notion goes under the name “originalism.”

Recent events, including the Republican response to President Obama’s nomination of Judge Sonia Sotomayor to the Supreme Court, reveal that the party is a highly unreliable vehicle for this principle.

So, for example, the Republican Party decried the Supreme Court’s decision in Kelo v. City of New London (2005) that the Fifth Amendment did not bar New London, Connecticut, from seizing private property for a public purpose. According to the stock criticism, the Fifth Amendment left open the possibility of government seizure of private property only for public use, not for public purpose.

What this criticism omits, however, is that the Fifth Amendment, like the rest of the Bill of Rights, is a limitation solely on the Federal Government.  Since the government of New London is not the Federal Government, an originalist reading would hold the Fifth Amendment inapplicable.

Just try explaining this to a Republican audience. Not only do Republicans argue for application of the Fifth Amendment’s Takings Clause against state governments. They also vociferously insist that the Second Amendment is enforceable against the states.

In fact, Republican lawyers have recently found success in persuading some federal judges for the first time to treat the Second Amendment as enforceable against the states. It once was only the left-most Supreme Court advocates (for example, those who argued against prayer in public schools) who argued for the Incorporation Doctrine. Now, however, this is a “conservative” position and “conservative” public-interest lawyers take this position before the Supreme Court.

The Bill of Rights as an obstacle to federal infringement on state authority was only one element of the underlying principle of the U.S. Constitution. This is “federalism,” the notion that the states (meaning the sovereign people of each state) had delegated only particular powers to the Federal Government. In the Reagan era, with Edmund Meese as attorney general and Charles Cooper as assistant attorney general, this principle received an emphasis it had not since 1937.

Now, however, the Republicans take an energetic position on the wrong side of the question. So, for example, Sen. John Thune of South Dakota recently offered his Concealed Carry Amendment to a defense authorization bill.

Under this amendment, if someone had a right to carry a concealed weapon in his home state, he would be given federal authorization to carry it in states he might visit. What constitutional provision empowers Congress to force this policy upon the states? Don’t be silly.

Of course, the question of gun rights is not the only currently live one that excites core Republican voters. Therefore, it also is not the only one that prompts Republican office-holders to ignore the principle of federalism.

In 2006, the editors of National Review endorsed the notion of an amendment to the Constitution defining marriage. Why should the Federal Government impose a single definition on all the states, who have always had complete control over such questions? Because federal judges cannot be restrained, those editors reasoned, from legislating their own definition.  In other words, if you don’t trust one fox, put the whole fox family in charge of the chicken coop.

Alas, to argue for augmenting federal authority seems to be what the editors of National Review reflexively do. Who cares about the Tenth Amendment’s reservation of all undelegated powers to the states?

No wonder Democrats and pro-choicers generally say that the Republicans are hypocritical in invoking the principle of federalism against Roe v. Wade. What is a “principle,” they rightly wonder, that is only invoked when it cuts in the desired direction?

That is a good point.

It gains additional force from the fact that Republicans do not even invoke it consistently across all abortion disputes. In Gonzales v. Carhart (2007), the Supreme Court upheld a congressional ban on partial-birth abortion. In a concurring opinion in that case, Justices Antonin Scalia and Clarence Thomas noted that the Commerce Clause, as properly understood, did not give Congress power to enact such a ban.

However, they said, so long as the Court’s unfounded Commerce Clause precedents stood, Scalia and Thomas would join in extending them to this new area.

Principled originalism in action!

Republicans also generally join in opposing pro-black discrimination in government hiring, firing, promotions, contracting, and other such decisions (and cheered the recent Ricci decision). They do this on the ground that the Equal Protection Clause of the Fourteenth Amendment requires color-blindness on the part of government.

This is of course a morally appealing argument. But the issue is not whether the Republican policy positions are appealing; that is a legislative question. The question is whether the Republicans’ constitutional position has merit.

Here, as in the other areas described above, it does not. The Equal Protection Clause was not intended as a wide-ranging mandate for government equality, but to have much narrower application. The Supreme Court long recognized this fact. Conservatives do their reputation for intellectual honesty no favors by arguing for extension of unfounded precedents.

In short, then, Republicans generally do not stand for principled adherence to originalism, which once was called “the Constitution.” Across a range of questions, they mirror their Democratic opponents in advocating judicial legislation of their preferred legislative outcomes.

Kevin R. C. Gutzman, J.D., Ph.D., Associate Professor of History at Western Connecticut State University, is a New York Times best-selling author.  He’s written Virginia’s American Revolution: From Dominion to Republic, 1776–1840, The Politically Incorrect Guide to the Constitution, and as co-author with Thomas E. Woods, Jr., Who Killed the Constitution? The Fate of American Liberty from World War I to George W. Bush.

Copyright 2009, Kevin R.C. Gutzman. Published with permission of Taki’s Magazine

There are few topics that can divide people who are normally ideological bedfellows like the legal doctrine of the “incorporation” of the Bill of Rights against the states and the Second Amendment. This subject is rearing its head again with the upcoming appointment of a new Supreme Court justice as well as federal courts’ recent conflicting opinions in regards to the Second Amendment.

The Wall Street Journal reports that on June 2nd, “A federal appeals court in Chicago ruled … that the Second Amendment doesn’t bar state or local governments from regulating guns, adopting the same position that Judge Sonia Sotomayor, President Barack Obama’s nominee to the Supreme Court, did when faced with the same question earlier this year.”

This ruling contrasts with a recent ruling by “the U.S. Ninth Circuit Court of Appeals in San Francisco … that the Second Amendment is incorporated against the states and local governments” — in other words, states and local governments are bound by the Second Amendment. Which court is correct?

To understand the debate in this topic, it helps to briefly review constitutional history. When the Constitution was first proposed, opponents of the new document criticized it for lacking a bill of enumerated rights, which were common in virtually every state constitution of the time. In response to these complaints, proponents of the new Constitution agreed to add a series of amendments in the first Congress that would codify restrictions on the federal government to infringe certain fundamental rights. The resulting first 10 Amendments, collectively referred to as the “Bill of Rights,” were ratified on December 15, 1791.

It is important to note two little-known historical facts regarding the proposal and ratification of the Bill of Rights. Alexander Hamilton, himself a prominent advocate of a liberal reading of the necessary and proper clause as well as a loose construction of the Constitution, argued that a Bill of Rights would be dangerous because it would imply that without such an enumeration of rights, the new government might actually have the power to infringe on these rights and might even now open the door for the government to regulate in these areas. In Federalist # 84, Hamilton wrote:

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? … I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government.

Hamilton basically was saying that the national government lacked the power to do any of the things that the proposed Bill of Rights were prohibiting, and codifying these restrictions might lead some to argue that the national government could actually regulate in those areas, which he felt was completely unconstitutional.

In addition, James Madison, widely regarded as “The Father of the Constitution,” wanted to have the Bill of Rights restrictions to be held against the states but was rebuffed in this effort because of widely held reservations to further empower the new government over the states. The first Congress refused to even submit such a proposal to the states for ratification because it was so unpopular. As a matter of fact, numerous states had gun-control laws on the books at the time, as well as state-chartered religions. It was not that the citizens were necessarily opposed to state involvement in these matters but rather did not want any federal intrusion.

These two historical facts illustrate that, at the time of the ratification of the Bill of Rights, it was recognized by the Framers and Ratifiers that the national government had no authority to enforce the Bill of Rights against the states, and whatever authority it did have was clearly delineated in the text of the Constitution itself.

Therefore, the Bill of Rights did not give the national government any new powers but simply reiterated important restrictions upon it and not the states. This understanding is consistent with the position that not only does the Second Amendment protect an individual “right to bear arms” against federal action but also that the national government lack any power whatsoever to regulate within this area. Additionally, the states are free to regulate (or not regulate) in that area based on their own state constitutions.

The fact that the Bill of Rights did not apply against the states was not modified until after the ratification of the 14th Amendment and the judicial creation of the incorporation doctrine. The incorporation doctrine refers to the court selectively “incorporating” certain amendments in the Bill of Rights against state governments via a liberal reading of the 14th Amendment — completely contrary to the original understanding at the time of its ratification as explained by widely respected legal scholar Raoul Berger in Government by Judiciary: The Transformation of the Fourteenth Amendment.

As the late Congressman Larry McDonald explained, the rationale behind the incorporation doctrine “runs completely contrary to thoughts and purposes of the original framers…. Their intent was to limit the rights and powers of the federal government, not to help expand them.”

The courts liberal interpretation allowed the federal courts to widen their jurisdiction and judicially review numerous state laws. Some libertarians welcome this development in constitutional history as a great opportunity to spread freedom because it gives advocates of individual liberty “two bites at the freedom apple — one under his state constitution and one under the U.S. Constitution.” Sadly, the constitutional record of incorporation is not something many advocates of individual liberty can be proud of.

Constitutional historian Kevin R.C. Gutzman details the sordid history of the incorporation doctrine:

This is what the Incorporation Doctrine has given us: in place of reservation of these areas of law to state governments for regulation via legislative elections, we get seizure of control over them by unelected, unaccountable, politically connected lawyers (that is, federal judges) who purport to substitute “reason” for the (one infers) “unreasonable” regulations crafted by elected officials…. It was under the cover of the Incorporation Doctrine that federal courts recently invented a right of child rapists not to face the ultimate penalty for their crimes.  It was under the cover of the Incorporation Doctrine, indeed, that a Supreme Court majority for several years banned capital punishment altogether. It was under the cover of the Incorporation Doctrine that the Supreme Court eliminated state prohibitions of various types of pornography. The Incorporation Doctrine also underlies the Court-created ban on prayer, even on moments of silence, in public schools. The Incorporation Doctrine has allowed federal courts to invent rights to burn flags, ban invocations at high school graduations, and establish essentially a national code of “acceptable” punishments.

Furthermore, it was with the help of the incorporation doctrine that the “politically connected lawyers” on the court were able to invent “penumbras” giving rise to the infamous Roe v. Wade decision, and there were even discussions at the height of judicial activism to engrain a right to a minimum wage within constitutional law. Libertarians should be careful what they wish for because the “interpreters” on the court do not always see eye-to-eye with their vision of liberty.

Ironically, libertarian proponents of incorporation who usually are almost universally opposed to state power, let alone massively centralizing power in a super state, are in effect advocating the use of a larger, more powerful central government (via its court system) to force smaller governments to “be more free” without recognizing the fact that freedom means different things to different people. Such a contradictory line of thought is in direct conflict with the proud Jeffersonian decentralist tradition of those who founded our constitutional republic.

This leads us back to gun-rights activists who are currently expending numerous resources trying to get federal judges to incorporate the bill of rights against the states. Ironically, years of money spent trying to get federal judges to advance the cause of gun rights resulted in the disappointing Supreme Court decision in District of Columbia v. Heller where the “conservatives” on the court acknowledged that the Second Amendment protects an individual right “to bear arms” but that right is not “unlimited” and there is still room for reasonable restrictions on gun control.

As renowned constitutional attorney Edwin Vieira, Jr. wrote last fall in The New American, “Could Heller allow gun regulation to the point that the regulation could become a prohibition for all practical purposes? What effect will it have, if any, on existing or future gun laws in other jurisdictions throughout the country?”

The Heller decision was disheartening to gun rights advocates who believed that vast amounts of money spent on endless legal challenges would engrain an unlimited right to gun ownership in our constitutional law. Related efforts to incorporate the limited protections of Heller against the state will face similar frustration.

Those who put their faith in “politically connected lawyers” to uphold their rights and advance the cause of freedom will continue to be disappointed. Perhaps these activists will now realize that federal judges are not reliable friends of individual liberty and instead will focus their energy on a much more realistic goal of making Congress constitutional.

Patrick Krey works in finance and has an M.B.A., J.D. (law degree), an L.L.M. (masters of law) from the University of Buffalo, and is an Attorney admitted to practice in New York State. He is also a freelance writer – his work has been published online at JBS.org, PrisonPlanet.com, Antiwar.com and in The New American bi-weekly print magazine. He is also the host of the online radio show The Constitutional Coalition.

With its decision in Nordyke v. King last week, in which the recent Supreme Court Heller decision was applied to state law, the Ninth U.S. Circuit Court of Appeals took another step down the long road of “incorporating” the Bill of Rights into the Fourteenth Amendment’s Due Process Clause.

In doing so, it continued down the path toward completely inverting the model of government to which The People agreed when they ratified the Constitution.

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… RESOLVED … that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States ….”

(Are you surprised that you have never read this before?  That it is not usually included in printed versions of the Constitution?  What accounts for that omission, do you think?)

Unsurprisingly, then, the First Amendment begins by saying, “Congress shall make no law.”  Why?  Because, as stated in its Preamble, the purpose of the Bill of Rights was to ensure that the Federal Government did not abuse its powers.

So widely was this understood to be the purpose of the Bill of Rights that in Barron v. Baltimore (1833), Chief Justice John Marshall for a unanimous Supreme Court ruled that the Bill of Rights limited only the powers of the Federal Government, not those of the states.  This was the only significant constitutional decision in which Marshall ever ruled against federal authority.

James Madison endeavored in the First Congress to include in Congress’s proposed bill of rights an amendment providing for federal judicial oversight of states’ behavior in respect to certain rights.  His effort was unavailing.

Thus, when “originalist” Antonin Scalia announced that the First Amendment establishes a right to burn a flag enforceable by federal courts against state authorities, he showed exactly how “originalist” he really is.

When Randy Barnett took to the pages of The Wall Street Journal last week to state that federal protection of all individual rights against state infringement was part of the original plan of the U.S. Constitution, he revealed how concerned with the consent of the governed he really is.

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