The Second Amendment, to the extent it is honored at all, has only been seen as a restraint on the federal government from enacting draconian firearm laws. State and local governments have not needed to so much as pay lip service to the Second Amendment.
That, of course, was the original idea--the Bill of Rights was intended to act as a brake on federal power. With the Reconstruction Era advent of the Fourteenth Amendment, though, much of the rest of the Bill of Rights has been applied to the people's dealings with state and local governments, as well. This incorporation of the Bill of Rights was found necessary to protect the rights of newly emancipated slaves in the post-war South, but has never been applied to the Second Amendment.
That is unfortunate, because many of the most draconian gun laws exist at the state and local levels. It would also seem to be in defiance of the intent of the Fourteenth Amendment. From Stephen Halbrook's That Every Man Be Armed: The Evolution of a Constitutional Right, quoting Representative John A. Bingham (R-OH)--who drafted the 14th Amendment--during debate over anti-KKK legislation enacted in 1871:
Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States. These eight amendments are as follows:
[Reads the first eight amendments of the Bill of Rights]
These eight articles I have shown never were limitation upon the power of the States, until made so by the fourteenth amendment. The words of that amendment, "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," are an express prohibition upon every State of the Union. . . .
Although actual application of the incorporation doctrine eventually rested on the due process clause of the Fourteenth Amendment, rather than the privileges and immunities clause cited by Representative Bingham, the idea still holds--the Fourteenth Amendment was at the time intended to apply to all of the first eight amendments of the Bill of Rights.
The time may at last be at hand for states to be forced to recognize the Second Amendment. In a lawsuit challenging Chicago's draconian handgun ban, Alan Gura (lead attorney in the Heller case) is systematically laying the foundation for incorporation of the Second Amendment, and I'm cautiously optimistic that the case he's building will be unbeatable.
It's about time. After all, an unalienable right that can be denied by state or local government isn't really . . . unalienable, is it?
----------
Cleveland Gun Rights Examiner Daniel White will be on NRA News at 10:20 (Eastern) tonight, discussing his "News from the weekend illustrates the futility of gun control schemes" article from yesterday. Catch that show if you can.
Check out the latest from other Gun Rights Examiners: Austin: Another Brady hallucination: More guns, more 'gun violence' (Part 1) Charlotte: Guns and the Constitution: A legislator finally 'gets it' Cleveland: News from the weekend demonstrates the futility of gun control schemes
DC: DC City Council enables residents' easy access to mail order handgun carry permits!
Denver: Active compliance......or not Los Angeles: Gun Control: the very first pig with lipstick on it. Milwaukee: Time to change our attitude about guns Minneapolis: The folly across the river
National: Showdown under the Big Sky?
Comments
Wow. I learned something today. Thanks, Kurt. I'll hold cautious optimism with you.
You could not be more wrong. The Bill of Rights does not describe "unalienable" rights, it describes the rights upon which the federal government cannot impinge. Life, liberty and the pursuit of happiness are the only rights described as "unalienable," and those aren't in the Constitution, they're in the Declaration of Independence. And just as there is "protected speech" and "non-protected speech" as the First Ammendment has been ruled by the Supreme Court, so have reasonable controls on acquiring, possessing, transporting and firing guns been ruled constitutional by the SCotUS. It does not remotely mean that there cannot be restrictions. And if you don't like the restrictions in your state or locality, move. You need to learn about Second Ammendment case law before you start commenting on what is and is not constitutional. Promoting ignorance and knee-jerk libertarianism does is not the same as promoting liberty.
Was this an exercise to see how many times you could work the word "draconian" into one blog post?
So why not bring your automatic weapon to work day - its your right!
Really, the solution should be to retain rights for hunters while controlling guns in urban areas and other safe zones such as churches and hospitals. That would be a reasonable policy.
the right to bare arms was given so citizens could fight the government if the situation ever justified it. It was not given for the benefit of hunters.
The 'Right To Bear Arms' was meant to allow citizens the ability to defend themselves from their own governments.
"Was this an exercise to see how many times you could work the word "draconian" into one blog post?"
If it had been, Todd, I could have managed it a great many more times than three--especially given the gun laws in much of the country.
I understand the legal underpinnings being discussed here as a literal application of the 14th Amendment to ensure ALL STATE GOVERNMENTS were under the same obligation as the Federal GOVERNMENT. I have to ask though about the EXACT wording of the Second Amendment."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."
I dare to say that Justice Scalia got this one wrong. I just can't twist the words, "...neccesary to the security of a free state..." with the right of EVERY individual to own or "bear" Arms. I served with people in the military who were more dangerous "bearing Arms" than Not.
Our Founders studied and chose their words carefully. They included "...A WELL REGULATED MILITIA..." for a Very Good reason: Individuals roused up by "anyone with a grievance" grabbing Arms and congregating form a MOB - NOT a Militia, which by definition can ONLY be formed by a Government be it local, state or Federal. Of course this opens the slip N slide for "Freedom Fighter versus Terrorist" as to the nomemclature of a "Government of two or more" versus a more "legitimate" recognized body.
AW-No, if you don't like the law where you live, change it via the system. None of that love it or leave it crapola.
JWS- Why not take you gun to work? Usually, the ones taking their gun to work to do violence know their co workers are unarmed. How about if you just run around with a t shirt thet says, "I am unarmed. Kick me."
The 2nd Amendment is not about hunting. It is about the ability of an INDIVIDUAL to protect himself, his family, and his property. The right to keep and bear arms has nothing to do with hunting.
Todd - Draconian is the best description. That's a good liberal. If you can't debate the issue, attack the opposition and deride his writing style. Why don't you just take a short cut and go ahead and call him a racist and save yourself some time?
"You could not be more wrong. The Bill of Rights does not describe 'unalienable' rights, it describes the rights upon which the federal government cannot impinge."
Yes, AM, I realize that the word "unalienable" was never used in the Constitution, but I don't see much of a difference between rights that are unalienable--one definition of which is "incapable of being repudiated or transferred to another; "endowed by their Creator with certain unalienable rights"--and rights which cannot be impinged.
As for the rest of your argument, I disagree, but that doesn't even matter--it has nothing to do with whether or not the Second Amendment should be incorporated under the Fourteenth Amendment. The example you use, the First Amendment, IS incorporated.
Thank you for playing, though.
To me, arguments about the 2nd amendment are almost silly at this point. Until the govt can demonstrate that it has a way to get the guns out of the criminals hands, it has NO moral or legal authority to try to keep guns out of law abiding citizens' hands as a way to defend their person, family and property.
Forgot to respond to the following, AM:
"Promoting ignorance and knee-jerk libertarianism does is not [sic] the same as promoting liberty."
And promoting ignorance and knee-jerk statism "does is not [sic]" the same as promoting order.
JWS is one of those poor fools who thinks it is perfectly acceptable to deny rights "those other people". As a fool he appears too dimwitted to understand that to the people who have the power to abuse the rights of the citizen, he is one of "those other people".
As for whoever referred to the 1st amendment as delineating between protected speech and unprotected speech, his well of comprehension of the issue seems rather shallow also. No one cuts out your tongue to preempt your supposed use of unprotected speech, which is the equivalent of what anti-second amendment advocates want to do as regards arms. Further, speech itself is not prosecuted unless it is speech that cause undue harm, usually due to its falsity. Think, slander or yelling "fire" in a crowded theater when there isn't a fire. Yelling "fire" in a crowded theater is protected if there is a fire and furthermore is your duty. In the other instant doing so is the causation of harm to others for no good purpose, which is why that speech isn't protected. Not hard, at all is it? How did you miss it? Just as truth is a perfect defense against charges of slander, the words are not prohibited in preemption of someone saying them falsely. See? how simple it is?
I am getting just a whole lot sick of people who insist on depriving and/or punishing everyone for potential behavior of a few. Just think about if we applied that behavior to rape. Everyone with a penis would have to be punished or have their penises confiscated because some other person abused the rights of another with his.
A free society does not punish potential behavior and you should be damn glad we don't. However it is astounding the number of people willing to do just that because they are not particularly interested in some rights. Fine, that is also your right, so long as you don't infringe my right you may choose to not exercise one or all of yours. You do not get to choose that path for me.
They need to first truly incorporate the 2nd Amendment at the Federal level. Then when surface-to-air missiles start showing up at Wal-Mart they can quickly repeal the 2nd Amendment and come up with a modern amendment.
They need to first truly incorporate the 2nd Amendment at the Federal level. Then when surface-to-air missiles start showing up at Wal-Mart they can quickly repeal the 2nd Amendment and come up with a modern amendment.
Kurt;
The 1st Amendment states "Congress shall pass no law....". The 2nd states "shall not be infringed", without any limitation as to whom a potentialy infringing power may be. The 2nd A is absolute and has applied to the states since its enactment.
Marcus
The purpose of the Bill of Rights is to catalog ten rights that are absolutely sacrosanct. It's purpose is not to grant those rights or to specify who can and can't prohibit the exercise of those rights. Even if the Second Amendment had been omitted from the Constitution, we would still have the absolute right to own weapons. This is our right and can neither be taken from us nor given back by any person or government. The proof? If you are armed, they can't take your rights without getting shot.
Yes... what is needed is more guns in the market and on the streets... thats what has been missing from our lives all this time!
What is needed is the exact opposite... stop the manufacture and sale of guns.
"What is needed is the exact opposite... stop the manufacture and sale of guns."
And the Constitution be damned--right, Shariq?
I agree wholeheartedly, Kurt. In watching the issue of increasing interest, among the states, of declaring their sovereignty under the Tenth Amendment, I note an incredible silence about the fact that the same Tenth Amendment also implies that the People may similarly declare their sovereignty from the federal government. But, what recourse do we have if the states, themselves, become as despotic as the federal government? Yes, we have the several state constitutions to hold them to, but, who, among the People of the several states is legally bound to these state constitutions and upon what grounds? Does mere accident or choice of residence compel one to abide by whatever tyrannical incursions a state makes, or do we the People of these several states have the right to declare our sovereignty from them, just as we have the right to declare it from the federal government? It would seem so, as none of us, as individuals, have ever willingly entered into a compact with any government. Each of us has, by accident of birth or by choice of residence, wound up a citizen of one of the several states. I suppose it is our prerogative to move to a less tyrannical state if we don't like conditions where we are, and this is easily enough achieved. But, what if all the states are practicing the same tyrannical policies? What then?
I have to disagree that Gura is "laying the foundation for incorporation of the Second Amendment," though. What the Heller "decision" really does is allow the government complete carte blanche to continue regulating our constitutional rights our of existence. Note the addition of the words "within reasonable limitations" in the court's final decision. The government is reserving for itself their power to go on regulating our existing right. You don't acheive the "incorporation" of the Second Amendment - which doesn't require any such "incorporation," to begin with. It is already the law of the land. It simply isn't being followed - by continually adding layers of new laws on top of it. Rather, the way to secure our Second Amendment and restore it fully to its rightful place is to simply REPEAL all existing gun control laws, all the way back to 1934's National Firearms Act, and to prohibit any future abridgement of the Second Amendment. Period.
"I have to disagree that Gura is 'laying the foundation for incorporation of the Second Amendment,' though. What the Heller 'decision' really does is allow the government complete carte blanche to continue regulating our constitutional rights our of existence. Note the addition of the words 'within reasonable limitations' in the court's final decision."
I agree wholeheartedly that Heller wasn't the gun rights "victory" many proclaim it to be, but that's a subject for another day, and I don't think it changes the fact that there is (I believe) a good chance that the Chicago gun case will end with the Second Amendment being recognized as applying to the states. The problem, as you point out, is that it will be the largely toothless interpretation of the Second Amendment that Scalia and friends left us with.
. I do NOT think the 14th Amendment was or is needed for incorporation against the States. It's simply a scam perpetrated by the judiciary to illegitimately deny US Citizens their inalienable rights. The Original verbiage of the Constitution contains language to the effect, "Full faith and credit shall be given in each State to the public acts ... and judicial Proceedings of every other State." and "The Citizens of each State shall be entitled to all Privileges and Immunitities of Citizens in the several States." and "This Constitution ...shall be the supreme Law of the Land... and the judges in every State shall be bound thereby..." AND "...all executive and judicial officers, both of the U. S and of the several States, shall be bound by Oath or Affirmation to support this Constitution;"
So judges/mayors/govenors et al across this land, including the Supreme Court justices, are in violation of their Oaths of office and the Constitution itself when they rule contrary to the simple, easily understandable language of this esteemed historical document! It also says judges, even the supremes, can only hold office "during good behaviour". So, let's start getting rid of those who continue to bastardize OUR rights, privileges and immunities!
AM your mistaken, please check your facts, the amendments of which your refering to are all in the Bill of Rights, which were the first amendments to the constitution, Not the Declaration of Independence. Please check your facts and your history and read up on why the Bill of Rights was written in the first place and you'll have your answer. Then try reading the Federalist and Anti-Federalist papers and you'll understand exactly what the founding fathers had on their minds when the wrote those documents so long ago.
"(The Constitution preserves) the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms." -James Madison.
The Constitution shall never be construed to authorize Congress to prevent the people of the United States, who are peaceable citizens, from keeping their own arms." -Samuel Adams, debates & Proceedings in the Convention of the Commonwealth of Massachusetts, 86-
"Laws that forbid the carrying of arms...disarm only those who are neither inclined nor determined to commit crimes...Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man." -Thomas Jefferson, quoting Cesare Beccaria.
"Arms in the hands of citizens (may) be used at individual discretion...in private self defense..." -John Adams, A defense of the Constitutions of the Government of the USA, 471 (1788).
They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety. ---Benjamin Franklin, 1759
“Democracy is two wolves and a lamb voting on what's for lunch, Liberty is a well armed lamb contesting the vote" Ben Franklin
An armed man is a citizen. An unarmed man is a subject
--- Machiavelli
And lastly from one of the greatest sons the England has ever produced
"If you will not fight for the right when you can easily win without bloodshed; if you will not fight when your victory will be sure and not too costly; you may come to the moment when you will have to fight with all the odds against you and only a small chance of survival. There may even be a worse case: you may have to fight when there is no hope of victory, because it is better to perish than to live as slaves."
Winston Churchill
Got something to say?
Examiner.com is looking for writers, photographers, and videographers to join the fastest growing group of local insiders. If you are interested in growing your online rep apply to be an Examiner today!