The federal courts are so appallingly bad at upholding the U.S. Constitution and the Bill of Rights that when they seemingly get things right for once, it’s hard not to celebrate. However, we must never lose sight of the fact that it’s our responsibility to defend our rights, not a bunch of politically connected federal lawyers. And we also need to remember that what they do one day in our favor they can easily undo the next.
We need to keep this in mind when we consider a recent federal appeals court ruling that overturned a Hawaii state law regulating firearms possession outside the home. In many ways, the court ruling was praiseworthy; it correctly pointed out that the Second Amendment’s text protects not only the right to “keep,” but also to “bear” arms, meaning it protects the right of gun owners to both possess guns in their homes and take them out in public.
But there’s a fly in the ointment. The court asserted that the state law violated the Second Amendment. The Bill of Rights was never intended to apply to the states. The ruling was based on the presumption of incorporation, a judicial invention that applies the Bill of Rights to the states through the 14th Amendment.
This may seem subtle, but the nuance is critical. It presumes that a federal court’s interpretation of the Second Amendment determines gun rights for over 300 million people in the United States. The problem is it vests the federal government with power it was never intended to wield. It wrecks the constitutional system and centralizes authority in a way that would have horrified the founding generation. Centralized power is the greatest threat to liberty.
Had the opinion concerned a federal law, the discussion would be different. Or, had it been a state court striking down the law because it violated the Hawaiian Constitution’s Bill of Rights – which includes the Second Amendment’s exact language – that would also minimize these long-term issues. But allowing a federal court to decide a state matter is a recipe for trouble.
The history of the Incorporation Doctrine shows that the concept is recent in origin, and it confers upon the federal courts’ enormous authority over the states that was not intended by the Founding Fathers. With it, a handful of federal judges now claim the power to dictate policy for millions of people, rather than allowing the 50 states to set their own laws and govern their citizens independently.
The belief that the federal Bill of Rights applies to state governments undermines the legitimacy of state constitutions, which all contain bills of rights that are similar to the first 10 amendments to the U.S. Constitution and often include more restrictions on government.
Yet, there is a more fundamental reason we shouldn’t cheer this ruling – or we should at least be wary of putting any faith in it. By doing so, we are essentially putting our rights in the hands of government employees and subjecting them to the whims of politically connected attorneys.
Hawaii’s state law violated its own Constitution. Therefore, it was an immoral, illegal and unjust law. Gun owners had no duty to obey it. They didn’t need to run to the federal courts. The could have nullified it just by refusing to comply. We need to look no further than marijuana activists to see that this is the most effective way to bring about long-term change.
TAC Communications Director Mike Maharrey summed it up well:
Marijuana activists started in California where there was a great deal of popular support and passed Prop 215 in 1996. When the feds cracked down, they didn’t give up. When the Supreme Court ruled against them, they didn’t panic. When the DEA closed down one medical marijuana dispensary, they opened two more. They just kept pushing on.
Today, more than half the states in the country have legalized marijuana for medical use. Eight states have legalized marijuana completely.
State, local and individual action has effectively nullified federal marijuana prohibition in half the country. Heck, they’ve even nullified it in the federal city of Washington D.C. Congress can pass all the laws it wants. Presidents can sign executive orders to their heart’s content. The Supreme Court can issue its opinions. But without state and local cooperation, the federal government can’t enforce a damn thing.
The ATF employs about 2,400 special agents. Do you really think that small group of people can impose federal gun laws on more than 300 million reluctant people encompassing 3,794,083 square miles without state and local cooperation? They couldn’t enforce the marijuana laws once people and states simply started ignoring them. They won’t be able to enforce the gun laws either.
The gun people need learn a thing or two from the weed people. Stop obsessing over federal action and Supreme Court rulings. Stop the Supreme Court panic. Stop acting like anyone elected will forever end your gun rights.
Gun owners need to stop depending on courts, legislatures, and even citizen initiatives to uphold their rights. They need to take a page out of the marijuana activist playbook. They need to get defiant and bold. They need to assert their rights no matter what anyone tells them.
If they’re not willing to defy a law regulating how they carry their guns outside their homes, what’s the point of having firearms in the first place?
If we aren’t willing to exercise our own rights, we simply become LARPers pretending to defend them. When we rely on the courts, we’re turning to people to defend our right to keep and bear arms who could just as easily take away those rights with the same power we’re cheering when it works in our favor.
We need to take to heart the motto of the great Austrian economist Ludwig Von Mises: Tu ne cede malis, sed contra audentior ito – Do not give in to evil but proceed ever more boldly against it.
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