Many people want the federal government to protect the right to keep and bear arms by applying the Second Amendment to the states and using it to limit state gun control. The problem with this strategy is that we almost always end up with a lower standard for the right to keep and bear arms that then gets applied nationwide.

Furthermore, putting the feds in charge of protecting the right to keep and bear arms gives states the cover they need to implement more gun control instead of limiting it. That’s because even though states can technically impose limits on their government that go beyond what the Supreme Court dictate, they rarely do. Any federal court decision usually becomes the upper limit on their action.

A recent federal court decision riddled with muddled reasoning drives this point home.

In his decision to deny a motion for a temporary injunction on a Washington state law certain banning firearms defined as “assault weapons,” U.S. District Court Judge Robert J.Bryan argued that the existence of state laws limiting firearms in the early years of the United States proves the Second Amendment allows for bans on certain firearms.

There are two significant problems with this argument.

First, the Bill of Rights as ratified originally restricted the actions of the federal government. According to proponents of the Incorporation Doctrine, including the vast majority of legal scholars and almost the entirety of the federal court system today, the Fourteenth Amendment altered that by making the Bill of Rights applicable to state governments. For example, this means the First Amendment restricts state and local governments on issues of an established religion or freely exercising one, irrespective of what the state constitution said on the matter.

The Incorporation Doctrine is a dubious legal theory that the Supreme Court created more than 50 years after the ratification of the 14th Amendment. The Court’s reasoning has very little support in the records of the debates surrounding the drafting and ratification of the Amendment.

But even if we accept the incorporation doctrine as valid, there is still a big problem. This legal principle could not possibly apply prior to the ratification of the Fourteenth Amendment in the 1860s. Prior to court cases decided based on the 14th, virtually nobody believed the Second Amendment was what limited a state’s ability to restrict or even ban firearms. It follows that what states did under state law and state constitutions prior to incorporation did not implicate the legal meaning of the Second Amendment.

So regardless of whether or not gun control laws were legal under colonial charters or state constitutions, if the Second Amendment was only incorporated to apply to the states since incorporation under the 14th Amendment – which was ratified in 1868, any actions taken by state governments prior to that date are irrelevant. The Second Amendment didn’t apply to the states at the time.

Bryan just ignores this fact. He doesn’t even deny that the Second Amendment did not apply to state regulation of weapons prior to incorporation. Nevertheless, much of his legal opinion cites historical examples of states and even colonial governments imposing bans on certain weapons, including trap guns and bowie knives, as proof that the Second Amendment allows for an outright ban on certain firearms.

His reasoning is incoherent. Local gun control measures prior to incorporation under the 14th Amendment, at the very least, don’t reflect the meaning of the Second Amendment in any way. Again, the Second Amendment restricted federal power, and state constitutions restricted state power. That means state laws prior to incorporation can only help us understand questions of state constitutional law, not federal.

But Judge Bryan ignored all of this, cited state regulations prior to incorporation, and then used a sort of reverse incorporation to justify those kinds of regulations and restrictions in Washington state (and by extension every state) today.

Not only is this horrible reasoning applied to this case in Washington state, this federal opinion could end up being used as a precedent in other states as well. In other words, this broad reading of the Second Amendment claiming it allows a state to ban assault weapons will be an excuse for other states to follow suit – even if their own state Constitutions protect the right to keep and bear arms. These federal incorporation cases render state constitutions meaningless and apply bad federal law to state governments across the U.S.

Bryan also cites the U.S. Court case Heller in which the majority opinion says the right to keep and bear arms is not “unlimited,” i.e. it allows the restriction of weapons deemed “dangerous.”

The fact that he carried this precedent over from Heller – a case that only applied to Washington D.C. – reveals how bad federal court opinions weave their way into the legal system and end up being applied nationally.

And like the notion that the right to keep and bear arms is not “unlimited,” most of these federal precedents undermine our rights and empower the government.

Incorporation sounds good on the surface. It promises to hold states in check and protect our rights. But it doesn’t work that way in practice. Instead, it allows federal judges to limit our rights through state court cases and then apply those limits across the country.

TJ Martinell

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