Liberty Maven

In the wake of last year’s Heller decision the question of incorporating the 2nd Amendment to the states has seen some play in the U.S. circuit court system. What is “incorporation” and should the 2nd Amendment override state law?

First, here is some audio from Guntalk, a weekly radio show hosted by Tom Gresham of Guntalk.tv, a wonderful resource for all gun-owners.

Gresham reveals the details of the previous incorporation-related cases and a new development that could have a bearing on whether or not the Supreme Court takes up the question. Before it was a no-brainer for the high court to hear the case, but now the 9th Circuit Court appears to be trying their hardest to make it a “brainer”. Listen to Gresham lay it all out in the audio below.

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Originally, the Constitution and Bill of Rights were a set of restraints on the federal government. The states pretty much had free reign on the laws they could enact. The states were governing themselves prior to the ratification of the Constitution. Our Founders (for the most part) tried to avoid trampling on states’ rights to self-govern. The amendments passed following the Civil War, particularly the 14th, set the stage for the trampling to begin.

In the 1890’s a series of Supreme Court decisions (for the first time) held that most of the Bill of Rights was enforceable against state governments. Applying the Bill of Rights to the states is called “incorporation”. The question then becomes should the Bill of Rights be incorporated (or apply) to the states?  (more details on Incorporation).

Upon first learning of the incorporation concept I was confused and had some questions. Didn’t the 10th Amendment make incorporation a non-starter? Then again, if the Bill of Rights was set up to enumerate (and protect) our own natural (or God-given) rights then how could those first 10 amendments not apply to the states? I’ve come to learn that there are at least two parallel universes where these kinds of questions get answered. There is reality where normal people live and work, and there is law where every letter of every word gets analyzed into oblivion.

The Supreme Court has ruled that just about every one of our first 10 amendments applies to the states. The 2nd Amendment is not the only exception but it is in the extreme minority. The Heller decision last year paves the way for the Supreme Court to rule in favor of incorporating the 2nd amendment to the states because of the following wording found in the decision:

“We find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ’shall not be infringed.”

Since the court recognizes that the right to bear arms is a pre-existing right, that it existed prior to the Constitution, it appears I found an answer to one of my questions. Yes, the 2nd Amendment does enumerate a natural human right. Of course, we already knew it did. Now it seems the Supreme Court knows it too.

I’m not one to favor letting the federal government stomp all over states’ rights, but given the 10th Amendment, and the plain truth that the Bill of Rights protects rights we already have as human beings, I’m strongly in favor of incorporating the entire Bill of Rights.

The problem is that our federal government ventures outside the scope of the Bill of Rights when wielding power over the states. That list includes conducting raids and arresting non-violent drug offenders in California even when state law says it is legal, coercing the states to abide by the federally mandated 55 MPH speed limit in the mid-1970’s by threatening to hold back federal transportation funds, and many others.

Recently, an amendment to force reciprocity on states to allow concealed carry permit holders to cross state lines legally while carrying failed in the Senate. This is one of those cases that would never even come up had we been following the 2nd Amendment as written. The 2nd Amendment doesn’t distinguish between concealing a gun and carrying it openly. This is why I supported the amendment even though it could be argued that it usurps some states’ rights.

I’m in favor of any law that makes an effort to enforce, in whole or in part, the Constitution of the United States of America. Such efforts give me hope that someday it will be the supreme law of the land once again.