Perhaps the most significant and long-lasting legacy of Donald Trump’s presidency will be his appointments to the United States Supreme Court. Supporters of candidate Trump expressed excitement over the opportunity for a Republican President to appoint a jurist who will be an originalist along the lines of the late Justice Antonin Scalia.
Justice Scalia has been touted as a “textualist” when it comes to interpreting the Constitution, meaning, he looked to the “plain words” of the document when determining what it means. However, as I pointed out in another article, his opinion in District of Columbia v. Heller, Scalia shows how textualism can result in an improper interpretation of the Constitution.
In Heller, Scalia properly held that the District of Columbia’s restrictive firearms laws were unconstitutional. However, his “textual” analysis went astray when he decided to explain exactly what the Second Amendment meant; in so doing, he actually ignored the text of the amendment and concluded that its “protections” by implication were limited to handguns, due to their popularity and ease of use for self-defense. His explanation of what “shall not be infringed” resulted in the phrase only protecting a limited category of firearms, leaving the door open for others to be infringed upon.
Two years later, in 2010, firearms laws once again found their way to the United States Supreme Court in the case McDonald v. City of Chicago, (561 U. S. 742). This time, however, city laws were the source of the controversy as opposed to the federal government, or the District of Columbia, acting under federal authority.
At issue in McDonald were laws passed by the city of Chicago and a suburb called Oak Park which effectively banned handgun possession by private citizens. Petitioners sued in federal court, seeking a declaration that the ban, along with other related ordinances, rendered them vulnerable to criminals. They asserted that the ban and related city ordinances were in violation of the Second and Fourteenth Amendments.
The district court upheld the constitutionality of the ban, noting that Heller had refrained from issuing any opinion as to whether the prohibitions in the Second Amendment applied to the states and asserting the court had the duty to follow precedent. For the Supreme Court to hold these local laws unconstitutional, the justices had to find a way to “incorporate” the Second Amendment to the states. This would essentially grant a federal veto over state laws, a proposition rejected outright during the Philadelphia Convention.
In our article on national concealed carry reciprocity, Carl Jones and I discussed how a proposed bill, popular among firearms enthusiasts, was in direct contravention to the Constitution as ratified. We explained that in order to understand the meaning of the Second Amendment, one must consider the context with which it was adopted. Likewise, one must also grasp the broader intent of the Constitution, which simply instituted a union of sovereign republics and created a “general” government to which specific enumerated powers were delegated.
The Second Amendment was intended to eliminate the need for standing armies by keeping “the militia,” meaning “every able-bodied person,” under the auspices of the individual states. The founding generation feared standing armies, as they led to war and the centralization of power in government. James Madison wrote, “of all the enemies to public liberty war is, perhaps, the most to be dreaded…because it comprises and develops the germ of every other.” He further explained that “War is the parent of armies; from these proceed debts and taxes,” and that “armies, and debts and taxes are the known instruments for bringing the many under the domination of the few.”
St. George Tucker wrote the very first comprehensive legal commentary on the Constitution. He was very clear when he stated that “The congress of the United States possesses no power to regulate, or interfere with the domestic concerns, or police of any state: it belongs not to them to establish any rules respecting the rights of property; nor will the constitution permit the prohibition of arms to the people.”
The legislative powers of Congress are set forth in Article I, with the enumerated powers listed therein under Section 8. Other than the power to arm the militia, no mention of regulating firearms is listed. None whatsoever. And the Tenth Amendment asserts the following:
“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.”
This means that the states, having never delegated such power to the general government, reserved for themselves the exclusive power to regulate firearms. Because the Bill of Rights was never intended to apply to the states, there is no means by which, coming from an “originalist” perspective, the Court could overturn the laws at issue in McDonald. Yet that is precisely what the Court did. In his concurring opinion, Scalia shows that not only does his “textualist” approach fail (see Heller), but so does his “originalist” approach.
Scalia’s analysis as to what “rights” are covered in the Second Amendment is problematic, as I explained in the Heller article. In Heller, Scalia acknowledges that the right to keep and bear arms is a right predating the Constitution. The historical context of the Bill of Rights is clear: they do not confer rights upon individuals; they are restrictive in nature, and the restrictions fall upon the general government. The first eight amendments merely reiterate that there were areas considered “hands off” to the general government. Regulation of firearms was one of the policy areas over which the states retained authority. Applying the Bill of Rights to the States was properly understood as undermining State sovereignty.
The Fourteenth Amendment served two distinct purposes: to negate Dred Scott v. Stanford, 60 U. S. 393 (1857) and to constitutionalize the Civil Rights Act of 1866, conferring the basic rights of U. S. citizenship to newly freed slaves — nothing more. Yet, Justice Scalia begins his concurring opinion by acknowledging his misgivings about Substantive Due Process as an original matter. He says, “I have acquiesced in the Court’s incorporation of certain guarantees in the Bill of Rights because it is ‘long established and narrowly limited.’
Scalia criticizes Justice Stevens for failing to properly apply the “Palko Test” in his dissenting opinion. In Palko v. Connecticut, 302 U. S. 325 (1937), the Court, in determining whether to incorporate the Double Jeopardy Clause against the States, required only that “a fair and enlightened system of justice would be impossible without that right sought being incorporated, or requires in addition that the right be rooted in the ‘traditions and conscience of our people.’”
The “Palko Test” conflicts with the Constitution and the Fourteenth Amendment as they were understood when they were proposed and ratified. When he introduced the proposal for a Bill of Rights to Congress, James Madison wanted some of the provisions to be made applicable against the States, where he argued liberty would most likely be threatened. As it was when he proposed this idea during the drafting of the Constitution in Philadelphia, his proposal was rejected.
“The powers delegated by the proposed Constitution are few and defined. Those which are to remain in the state governments are numerous and indefinite…The powers reserved to the several states will…concern the lives, liberties and properties of the people and the internal order, improvement and prosperity of the state.”
The relevant part of the 14th Amendment states:
“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.”
The Bill of Rights was never understood to be applicable against the states, and there is no historical evidence to support 14th Amendment incorporation. Even nationalist John Marshall, in Barron v. Baltimore 32 U. S. 243 (1833), admitted such when he wrote that the first ten “amendments contain no expression indicating an intention to apply them to state governments. This court cannot so apply them.”
In 1925, the Supreme Court “found” the authority to apply the Bill of Rights against the States in the Fourteenth Amendment. (Gitlow v. New York 268 U. S. 652) This application is problematic and not supported by history. When the 39th Congress proposed this amendment, “incorporation,” was not its intention. As I’ve mentioned, the purpose and intent of the Amendment were to constitutionalize the Civil Rights Act of 1866, thereby taking its provisions out of the hands of the legislature.
Senator Poland observed that the phrase “…no State shall…abridge the privilege and immunities of the United States” was not intended to secure anything beyond what was set forth in Article IV, section 2 – basic rights of citizenship for freed blacks.
In his book Original Intentions, M. E. Bradford explains that “even the patron saint of the Republican Radicals, Thaddeus Stevens of Pennsylvania indicates his agreement…that these measures ‘do not touch social or political rights.’”
So, how where did this notion of incorporation come from?
A senator mentioned the idea one time as the 14th Amendment was making its way through Congress.
In what scholar Raoul Berger described as “a caprice of fortune,” it fell to Senator William P. Howard (R-MI) to act as spokesman for the Joint Committee in explaining the Amendment. Howard, who was summoned to fill in for the suddenly ill Chairman William P. Fessenden, in addressing the Senate said that in addition to the privileges and immunities of Article IV, the amendment should also include the personal rights secured by the first eight amendments. Berger tells us that that was “the sum and substance of Howard’s contribution” to the issue of incorporation. Those who spoke after Howard made no mention of the Bill of Rights and repeated that the goal of the Amendment was to constitutionalize the Civil Rights Act. Howard later walked back this statement by assuring the Senate that the purpose of the Amendment was to secure basic rights of freemen, nothing more. Even if one were to accept the Senate’s acceptance of Howard’s statements, there was no mention of applying the Bill of Rights when the issue was returned to the House, something Berger refers to as a “remarkable silence about an extraordinary expansion of jointly accepted goals!”
Justice Hugo Black, whom Berger describes as the “architect of the ‘incorporation’ theory,” relied upon Howard’s earlier statement as well of those of John A. Bingham, a Republican from Ohio who erroneously stated that every word in the proposed amendment was already in the Constitution – as Berger points out, “‘equal protection’ was missing altogether,” and that whatever weight may have been attached to Bingham’s statements, “even his admirers read them restrictively.”
While Bingham waffled back and forth on his understanding of the purpose of the proposed Amendment and its relationship to the Bill of Rights, Senator Lyman Trumbull from Illinois twice reassured his peers that the bill would not affect states not discriminating between its citizens. John Sherman from Ohio reassured his constituents that the first section merely embodied the Civil Rights Act.
The history of the development and ratification of the Fourteenth Amendment is iron-clad. Why, then, has it become the means by which the Bill of Rights has been incorporated against the states when the record clearly indicates it was never intended to?
By 1925, the Progressive era was in full swing and the Court was well on its way to imposing a full rewrite of the Constitution upon the states and the American people, diminishing the division of powers between the states and the general government. Justice Hugo Black, appointed by Franklin Delano Roosevelt, is described in Kevin Guztman’s book, The Politically Incorrect Guide to the Constitution, as the leading proponent of the Incorporation Doctrine. Black’s first purpose was to support the New Deal. By so doing, he “joined a new majority that eschewed the Supreme Court’s traditional (intended) role of checking congressional efforts to legislating beyond its enumerated powers.” The institution that was intended as a check had become a legislative body in its own right, with rulings being handed down to conform with the desired policy preferences of the sitting justices.
Going back to McDonald, the essence of Scalia’s concurring opinion was to criticize Justice Stevens for using his policy preferences in the application of the Palko Test; he took exception to the subjective application of due process to include “new freedoms the Framers were too narrow-minded to imagine.” Social policies and firearms were deemed appropriate to be handled locally, meaning, the by the states. By chiding Stevens for failing to consider Second Amendment “rights” as “fundamental” enough to be incorporated against the states, Scalia misses the point of the Second Amendment: it is a restriction upon the general government, a point he earlier conceded. Simply acknowledging that this right is “deeply grounded in our nation’s history and tradition” is apparently sufficient to substitute the Court’s judgment for amending the Constitution. By claiming power over areas over which the general government was never delegated, issues over which the states clearly retained for themselves, the Imperial Court has fundamentally transformed the federal nature of our Constitutional Republic.
They did this by completely disregarding the history of the proposal and ratification debates surrounding the Fourteenth Amendment. There is virtually no history supporting this made-up doctrine, the means by which our republican system of government has been systematically dismantled; the result is a “one-size-fits-all” central government, in which all rights and powers must emanate from Washington, D.C. The limited general government has assumed a sovereignty of its own, one which has rendered the states mere subsidiaries. The war for American Independence was fought for the right to self-govern, to have social issues decided by the people through their locally-elected representatives. By acquiescing to the overreaching of our present national government into areas in which powers were never delegated, we have turned our backs on principles such as state sovereignty consent of the governed. We have surrendered our revolutionary legacy.
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