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