Second Amendment permit (courtesy localammo.com)

Written by Scott Landreth. Republished with permission from blog.tenthamendmentcenter.com:

“I have a constitutional right to keep and bear arms!”

“The 2nd amendment is my gun permit!”

“State gun laws violate the 2nd amendment!”

Most of the people who utter these words are well-intended. They are very passionate about their right to keep and bear arms, but I can’t help but wonder if they truly understand where rights come from or what the 2nd amendment means . . .

Perhaps they’ve never taken the time to think about what these worn out cliches imply: that our right to keep and bear arms is granted to us by the 2nd amendment, that without the 2nd amendment, no such right would exist and that the 2nd amendment is a “universal” prohibition against all gun laws.

These same people likely cheered when a three-judge panel of the 7th U.S. Circuit Court of Appeals struck down Illinois’ ban on concealed carry permits and gave lawmakers there a deadline to craft legislation legalizing the concealed carry of firearms. This was said to be a victory for the 2nd amendment, but it was no such thing.

It was yet another blow to federalism intended to further centralize power in Washington DC.

To paraphrase Gerald Ford:

A government powerful enough to force Illinois to issue concealed carry permits is a government powerful enough to prohibit Illinois from issuing concealed carry permits.

The US Constitution as ratified in 1788 made no mention of the right to keep and bear arms whatsoever. The founders viewed the right to keep and bear arms as a natural right that stood as a part of English common-law for nearly a century.

It was a given!

It wasn’t until the ratification of the Bill of Rights in 1791 that the prohibition against federal “infringement” of this important natural right was codified into law via the 2nd amendment.

The purpose of the Bill of Rights was to further define and clarify the limits of federal authority. The 2nd amendment doesn’t give anyone the right to keep and bear arms, it simply prohibits the federal government from interfering with that preexisting natural right.

Furthermore the men who drafted, and more importantly ratified, the US Constitution and the subsequent Bill of Rights intended the 2nd amendment to apply to the FEDERAL government only. NOT to the state governments. The preamble to the Bill of Rights makes this fact abundantly clear when it says, in part,

“The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution….”

Dr. Kevin R.C. Gutzman, an American historian, Constitutional scholar, and New York Times bestselling author explains the preamble to the Bill of Rights this way:

The “its” refers to the Constitution’s powers, and “the Government” refers to the Federal Government. In other words, the purpose of the federal Bill of Rights is to clarify the limits of Federal Government power. Its purpose is *not* to limit the state governments’ powers IN ANY WAY.

Even the US Supreme Court led by the ardent nationalist Chief Justice John Marshall admitted in Barron v. Baltimore in 1833 that the Bill of Rights did not apply to the states.

The court reaffirmed the Barron ruling more than 40 years later in United States v. Cruikshank in 1876 (yeah, this reaffirmation came nearly eight years AFTER the 14th amendment was ratified). In addition, the Court held that the right of the people to keep and bear arms is a right that exists without the Constitution granting such a right, by stating “Neither is it [the right to keep and bear arms] in any manner dependent upon that instrument [the Constitution] for its existence.”

It wasn’t until 1925 – more than 130 years after the Bill of Rights was ratified – that the Supreme Court decided that select portions of the Bill of Rights also applied to the states. This ridiculous 20th century invention of the Supreme Court known as the “incorporation doctrine” has been used to chip away at the 10th amendment and state sovereignty ever since.

At the end of the day, we need to understand that giving the federal government the power to protect our rights inevitably leads to the federal government defining our rights. Do we really want the federal government – or in many cases as few as five unelected, unaccountable judges – dictating what 310+ million Americans can and can’t do?

If history is any indication, the answer is an emphatic NO! The federal government does not have a good track record and the best predictor of future behavior is past behavior.

State and local lawmakers will undoubtedly make bad decisions too, but those bad decisions are less difficult to combat and affect fewer people. State and local lawmakers are more accessible and typically more likely to respond to the will of their constituents. In short, our odds of affecting positive change are much greater at the state and local level than at the federal level, assuming we focus attention and energy at the state and local level – something that all too often fails to happen.

The founding generation treasured liberty, and it viewed centralized authority as the greatest threat to freedom. They had every opportunity to give the federal government power to enforce “rights” in the states, but declined. They feared placing that kind of power into so few hands. They undoubtedly recognized that states could violate rights, but they believed the people could manage their state governments.

If “We the People” continue to allow the federal government to act outside of its clearly defined jurisdiction, it will undoubtedly make more rulings with which we disagree than agree. The illegal actions of the federal government that render seemingly positive results – such as the aforementioned Illinois concealed carry case – are just as dangerous to liberty as those that render seemingly negative results.

Consistent, unwavering fidelity to the “supreme law of the land” is the key.

The Constitution. Every issue, every time. No exceptions, no excuses.

About the author

Scott Landreth is the Ohio Chapter Coordinator for the Tenth Amendment Center, a national think tank that serves as a forum for the study and exploration of state and individual sovereignty issues, focusing primarily on the decentralization of federal government power as required by the Constitution. Send him e-mail to scott.landreth@tenthamendmentcenter.com.

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198 Responses to The 2nd Amendment is Your Gun Permit? I Think Not!

  1. tSounds great in theory. Tell the African Prince in the White House & the uber LEFT Supreme Court gals they have no say. Good luck with that.

    • EVERYONE LISTEN UP. THE CONSTITUTION DOES NOT GIVE ANYONE GUN RIGHTS. IT MERELY RECOGNIZES THAT EVERY PERSON IS BORN WITH THE RIGHT. IT IS YOUR BIRTH RIGHT. ANY TYPE OF REGULATION IS INFRINGEMENT AND ILLEGAL. THE CONSTITUTION IS YOUR PERMIT.

  2. TAC gets it right, as usual. Those of us who cherish the natural right to defend ourselves and our loved ones should always refer to federal encroachment by asking, “Where in the Constitution of the United States is this delegated?” As far as federal gun laws, the answer is nowhere. We rely on the 2d to “prevent misconstruction or abuse of its powers.” Federalism at is finest. No authority granted and further restrictions identified.

    • “Where in the Constitution of the United States is this delegated?”
      The 10th Amendment
      “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.”

      • “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States”

        “The right of the people to keep and bear arms, shall not be infringed.”

        This power is not delegated to the United States by the Constitution.

        This power is prohibited to the states by the Constitution.

        This power (to infringe, in particular) is forbidden to all government large and small. Read the thing! SHALL NOT BE INFRINGED! What part is unclear? The whole thing is 27 words long, pretending you are incapable of deciphering it in less than 100 words shows you to be a liar and a scoundrel, in the parlance of the day.

        • +100,000. Think it’s something which may be infringed? Come and take ’em, baby.

        • Agreed. What good is it to say something like freedom of speech is guaranteed at the federal level but the states can censor you if they want?

        • I agree. It’s “We the People”, not “we the federal gov’t” nor “we the State gov’t”. I dissagree with the theory that the 10th amendment is there so the states can take our rights. My rights are MINE. My right’s should not change just because I walked across an imaginary line, arbitrarily drawn on a map. If I live in NH, and I want to take my family on a road trip to the grand canyon, I should be able to carry my gun, as I please, with my standard capacity mags. But when I cross into NY, I have to leave my 17 round mags behind? Or do I just UPS them to PA? WTF! The 10th amendment is there to clarify that each state has sovereignty to govern themselves, and make their own laws, and nullify bad federal laws, NOT so the state can make laws, that curtail our rights.

      • Reserved, not delegated. All power resides at the state and local level. Some powers are delegated to the federal government through the Constitution. The 10th amendment cannot delegate to the states and people powers which they already possess.

        • The 2nd Amendment clearly states that the right to keep and bear arms IS A RIGHT OF THE PEOPLE.
          .
          Not the State.
          Not the County.
          Not the City.
          Not the School District.
          Not the University.
          Not the BLM or the Forest Service.
          AND NOT THE COURTS, SUPREME OR OTHERWISE!
          .
          And for those individuals who think that THEY get to decide this issue by a Constitutional Amendment or other process; understand this:
          .
          You cannot take away an Unalienable Right
          You cannot take away a Natural Right
          You cannot take away a God-given Right
          .
          You can only DENY those Rights.
          .

          .

  3. I’ll take the authority of this revisionist malcontent to interpret the supreme law of the land as trumping that of John Roberts, Antonin Scalia, Samuel Alito, Richard Posner, and Diarmuid O’Scannlain.

    Not.

    • That is absolutely correct. I can read. Can you? The meanings have been twisted and upended until completely nonsensical by arrogant “justices” in order to fulfill political promises in open violation of the clear intent of the Constitution and Bill of Rights. If you READ them, that is painfully obvious, and of course was beginning when the average American adult was not capable of reading them, had to rely upon his “betters”, causing an overall attitude like yours, “Oh, Joe Blow says you are wrong, see, aren’t you sorry now?” Who the flicker is Joe Blow, besides a privileged jerkoff with a daddy who bought him a degree? How did he get that job when he plainly cannot read? YOU can read it. Can you THINK?

      • You left out BLACKMAIL, which applies especially in the case of Justice Roberts. NSA. NSA. NSA. NSA.

      • There is always, still, Jury Nullification. Any case would still have to come before a jury. A jurst cannot be arrested or questioned. They are told by the judge that they cannot judge the law. BULL…that is one thing they can do, because the Jury is the LAST defense against BAD LAW.

    • I would accept this argument if it was applied universally. No social security, medicaid, obamacare, fcc, epa, irs. Roads and military, thats it. Would New York gun rights get worse without the “protection” of Feinstein? New Jersey?

      • This is exactly what the Tenth Amendment Center is arguing for. If you read the materials on their website, they have very extensive coverage, not focusing solely on RKBA. However, they ally with different groups over different things – for example, one of their current crusades is against federal drug laws, and that tends to be something that is supported more by liberals and less by conservatives, while RKBA is the opposite.

      • I don’t know, but the roads would get better. The more liberal the state, the worse the roads, because all the tax funds go to social services.

        Those from the Northeast corridor are usually shocked by the great condition of Virginia’s roads, when passing through.

        • Will if we were free , someone tell me why our tax money is used to bailout the (private) central banks like the FEDERAL RESERVE , We have no LIBERTY since 1913 , and we the people pay all the cost for one world government , WHEN ? if ever will the sheeple WAKE UP ?? LIBERTY is DEAD and GONE.

        • Not in Texas. we turned down federal funding, or at least part thereof, in order to set our own speed limits IIRC.

        • Every state is free to set their own speed limits these days. You’re probably thinking of the National Maximum Speed Law back in 1974, which Texas didn’t join. It was repealed in 1995.

        • Great condition of Virginia’s roads? I dont know about all that. I live here

      • Man, I LOVE how you just said that. “Roads and military, that’s it”, that’s ALL the government should be doing, as well as upholding the constitution.

    • Wow did you get it completely backwards.

      You see we have this tricky little thing called an historical record, and in that historical record you can see the Supreme court and every level of government viewed it exactly the way the author describes. The “revision” is made in modern times, to consolidate power to Washington.

    • Funny, I think we had a similar argument about malcontents and Good King George a bit over two hundred years ago. People really need to remember who won that argument.

      And two many in this thread are making the same mistake. Just as 2nd Amendment is not our gun permit, no other Amendment grants us any rights, either. Not the first, not the fourth, not the tenth, not the fourteen, and not the ten millionth. Jefferson said our rights, all of them, are “unalienable”, and he was correct.

      I don’t give a damn what the Constitution says, other than people understand this is where I draw the line. If the Supreme Courts says we do not have a right, the Supreme Court is wrong. If the Constitution itself says we do not have a fundamental right, it, too, is wrong.

      If liberals say we do not have a fundamental right, it matters not at all who agrees with them. If they want this right curtailed, they will have to do so by force of arms. Period.

  4. In a word, no.
    No legal scholar here, so maybe he has a point. The catch as I see it though is that the bill of rights can’t be selectively applied. Either slavery and free speech are federally prohibited and legal at the state level or they aren’t—legal that is. The historical evidence I’ve seen singularly indicates that the second amendment was certainly meant as a check on Federal power, but only in so much as it protected the citizenry’s right to bare arms—thus creating the fodder for citizen militia. Whatever the historical intent you want to argue was at the time, it seems clear to me that the bill of rights is now, especially through the tenth and 14th amendments, meant to apply to all governmental Agencies State, Federal, or Local. People have the right to free speech, protection of property/privacy, and the right to bare arms. The second amendment protects that right, but it doesn’t convey it. The argument that somehow we should give up that protection in the name of states’ rights is not only dangerous, but seems to me to fly in the face of the framers’ intent.

    • >> The catch as I see it though is that the bill of rights can’t be selectively applied. Either slavery and free speech are federally prohibited and legal at the state level or they aren’t—legal that is.

      The Bill of Rights says nothing about slavery (seeing how it was introduced when it was still legal and widely practiced, this should not be surprising).

      With respect to freedom of speech, and all other rights and freedoms that it actually guards, it was certainly “selectively applied” in a sense that it limited what the Feds can do to the States and People, but not what the States can do. That’s why all States have their own constitutions, which usually have clauses about freedom of speech etc.

      >> Whatever the historical intent you want to argue was at the time, it seems clear to me that the bill of rights is now, especially through the tenth and 14th amendments, meant to apply to all governmental Agencies State, Federal, or Local.

      The 10th by itself doesn’t in any way make the rest of them apply to the States.

      The 14th, now, does have something along those lines. But the fact that it took the courts over 50 years to actually decide that this is what “shall not abridge privileges or immunities of citizens” means kinda goes to show that it’s not exactly crystal clear. It should also be noted that, even with the currently-standing incorporation doctrine, rights are incorporated on a case by case basis, and the entire Bill of Rights has not been incorporated yet.

      • Thanks.
        I misspoke there, I tend to view all the constitutional amendments, including the bill of rights in the same light. If one applies, then they all should apply, 13rd, 19th, 24th, and second…regardless. I realize case law has taken a different view. The author of this article seems to be saying that we should be careful what weight we give the second. I clearly disagree with his assumptions. I’ll leave the history of case law to those more knowledgeable than I.

        • I think this is unreasonable. A constitutional amendment it a very generic thing. It doesn’t even have to be a grant of a right, it can be the opposite. So the scope of its applicability should be defined solely by the text of the amendment itself, or rather, the text of the constitution as a whole after applying the amendment. In programming terms, amendments are just patches to the source code; you don’t run the patches separately, you run the patched source code in its entirety.

          So if you take the original Constitution that then apply Bill of Rights to it (but not any subsequent amendments), then the resulting combination is fairly clearly restricted to the Federal government. OTOH, once the 14th amendment enters the picture with its “privileges and immunities” clause, the picture is far from clear. The standing interpretation is that 14th is what causes the other, retrospectively applied amendments to apply to the states. TAC believes that this is wrong. I disagree with them on that, but it’s a valid viewpoint.

        • Guys, with all this theoretizing, please explain why RKBA is not contained in the 1st Amendment?! The BOR was all passed at the same time, as though it was one item. Why the separations? If you try to explain that, you may approach the truth. The equivalent reading would be “Congress shall make no law regarding the Right to Keep and Bear Arms.” What’s wrong with that? Why was it not included there?

        • Er… because nothing in:

          “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

          says anything about the right to keep and bear arms?

          (I’m not sure if I understand the meaning or intent of your question. Can you clarify?)

        • Sorry, didn’t see the edit. The answer is actually very easy: so that amendments could be ratified separately, rather than as a single batch – so that, if some state refused to ratify one of them, it wouldn’t stall the others. Indeed, the Bill of Rights as submitted to ratification actually had 12 amendments, and only 10 were ratified.

          (the 11th one was ratified 200 years later as the 27th Amendment)

    • I’m sorry, the Federal Constitution is applied to the states through the Tenth? The Tenth empowers the States at the expense of the feds, not the other way around. The author has a good point, the founders considered the states to be the proper seat of most governance, and distrusted centralized authority. They went a bit overboard in that direction with the Articles of Confederation, but they still envisioned most governing power residing in the states. The Bill of Rights, at the time it was promulgated, was aimed directly at the Federal government, not at the States.

    • ” The catch as I see it though is that the bill of rights can’t be selectively applied. Either slavery and free speech are federally prohibited and legal at the state level or they aren’t—legal that is. ”

      So the power to make treaties and regulate trade reside both in the federal and state governments?

      No, the Constitution and amendments can delegate and reserve any power it wants. If it says “Congress shall have the power to…” it means it is under the sole purview of the federal government, or “Congress shall make no law..” the federal government is prohibited from involvement period.

      The natural state of the governments, federal and state, is that the state governments have all of the power. The federal government is allowed some specific powers in order to strengthen the union of states. We didn’t actually need a bill of rights to restrain the federal government, as it has not been granted the power to regulate speech etc, but there were those who wanted to put an exclamation point on some areas.

  5. “Consistent, unwavering fidelity to the “supreme law of the land” is the key. The Constitution. Every issue, every time. No exceptions, no excuses.”

    Yeah, sounds nice and looks great on a bumper sticker. What does it mean? If the federal courts are not a legitimate authority, who is? Each one of the 330 million people in the US with his or her view of the Constitution? Only the states, which can happily do whatever the bare majority thinks is right?

    I don’t think many people would really enjoy the outcome if this were to occur.

    • Democracy is awesome, until you discover that you’re not in the majority on an issue. I am no fan of our ever expanding federal government, but I have no issue with the federal courts enforcing the Bill of Rights against federal, state, and local governments. It’s one of the few useful things that we get from the federal government. And, when they screw-up and declare that a state or local government can do something improper without violating the Bill of Rights, we can always resort to the democratic process at the state or local level to remedy the situation. The federal courts are an imperfect but useful backstop.

      • Despite the efforts of people like Alex Hamilton, this country was never designed as a democracy. Rather, it was, and is, a CONSTITUTIONAL REPUBLIC.

        The recent spate of anti-Constitutional articles here at TTAG has franking been upsettting to me.

        • Where do you see anything arguing for direct democracy and against a constitutional republic in this article?

          To remind, the constitution has included the clause about the “republican form of government” on state level since day 1. So a constitutional literalist is, by necessity, a staunch supporter of republicanism on all levels.

    • Thanks Hannibal, if you hadn’t brought it I would have at the bottom of the page.

      I don’t think the Framers could possibly have intended that each state be so sovereign as to conduct war against each other, seize one another’s property or the property of citizens of other states or to violate the natural rights of citizens of their own or other states. Had this been the intent the result would have been not only chaotic and ultimately unworkable but ineffective and senseless. Why provide for each state forming it’s own nation while referring to the United States as a single entity and a nation it’s self?
      That the states largely didn’t behave in this manner in the years between 1789 and 1860 is a pretty good indication that it wasn’t the intent for them to and furthermore that most people knew it. The earliest rulings by SCOTUS that are most relevant to states rights seem to affirm that one state ought to recognize the laws of others and continued in this vein until the situation was intolerable; that is, the states had developed irreconcilable differences. At that point a civil war was required to sort the thing out and the 14th amendment was ratified to avoid exactly such a mess arising again.

      If the Citizenship Clause, Privileges or Immunities Clause, Due Process Clause, and Equal Protection Clause don’t refer to the BoR what is the intent of the 14th?

      Regardless of the framers intent, without the 14th there is no ‘United States’ but something more akin to the EU; a loose confederation of sovereign nations. The US would never have reached anything like it’s current economic and military strength certainly, and it’s possible that it could have divided up and fought internally again at least 2 more times (WWI and II) if no more over disputes arising between the states themselves. The very notion that the rights, privileges and immunities spelled out in the constitution aren’t binding on the states is ludicrous. To the greater degree that there is separation between the rights, privileges and immunities between the states the less the US is a nation. Thought, much like the RKBA existed and was a forgone conclusion before the 2a was ratified the idea that the BoR applied to the states as well was understood, the 14a was simply a clarification of this preexisting intent. Without it, and using the treatment of African-Americans as an example, TN could declare that anyone from the state of NY no longer had the right to keep property, bear arms or to due process within it’s borders while a radical cabal in CA could seize any assets located there of any company that did business in meat, or guns and there would be no legal recourse. It’s just absurd to even consider the US a country if the constitution isn’t applicable to the states because it wouldn’t be, it would be a collection of countries.

      No one would call it a frightening overreach of federal power if a federal army were raised to rescue New Yorkers being held without due process in Tennessee and there is no federal overreach in the federal government telling Illinois that natural, constitutionally protected rights apply within its boarders. the two are the same and arguing against one forces an argument against the other which is simply absurd.

      What happened in IL was an appropriate action by a legitimate body with proper jurisdiction that simply recognizes that the rights of a US citizen are in effect in IL the same as they are anywhere else in the nation. That I agree with the decision isn’t even a consideration, since I agree with it because it was, constitutionally speaking, the only lawful outcome. When a federal court rules that, for example, due process no longer applies in Iowa then we can talk about overreach, because in that case the decision is in conflict with the constitution. It’s not a states rights issue and trying to frame it as such is convoluted at best and disingenuous at worst.

      As to having a federal government with the power to enforce the constitution in IL equating to having a federal government with the power to strip the people of IL of their rights protected by the constitution (because that is what is really implied by the OP isn’t it?) the concept is bizarre. In the former case the constitution that we all agree to live by is being enforced and in the latter the government would be acting counter to the constitution and without any legitimacy. The former case requires us only to breath a sigh of relief that the right thing has been done and the latter requires immediate remedy, via the courts, the polls or by force of arms if it comes to that. The two government actions proposed are not equal to each other, one is just and should be predictable while the second is unjust and illegal as the constitution denies the federal government the power to suspend the rights of the people.

      Frankly that someone could fail to see that is both odd and a little shocking.

  6. I agree to your point, but please read Article 1 Section 1 and Section 2 of the Texas Constitution. Violations of the 2nd Amendment by the state are in direct conflict with stipulations of Section 1.
    This is just my state, your results may vary.

    Sec. 1. FREEDOM AND SOVEREIGNTY OF STATE. Texas is a free and independent State, subject only to the Constitution of the United States, and the maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government, unimpaired to all the States.

    Sec. 2. INHERENT POLITICAL POWER; REPUBLICAN FORM OF GOVERNMENT. All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.

  7. Well, the 10th Amendment says: “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.” To me, the Bill of Rights falls under the second part; it prohibits restrictions not only to the federal government, but also the state governments. So the author is saying that states can infringe on natural rights, even though some founders thought that they wouldn’t even need to have it. To me this article is full of contradictions. While I get that the overarching message is of ‘abusive’ federal power, it gets lost because it comes off as approving of abusive state power.

    • Seconded.
      If the bill of rights only applies to the Federal government than look out. Either it applies to all citizens in its entirety, or it doesn’t. You can’t tell me that the framers intended to restrict free speech at the state level, or allow unrestricted search and seizure of property by state agencies. I think the author is trying to say that the second amendment reflects a natural right and assuming that its power lies in the constitution is misguided—which is fair, but this article implies much, much, more than that. Words-have-meaning.

      • You misunderstand. The Bill of Rights is not about restricting or granting rights for the citizenry. It is about establishing the limits and authority of the Federal of Government with respect to its citizens. That’s it. The states, by the will of the people in each of those states, were supposed to come up with their own laws of governance. Any overreaches on the part of State and Local governments can be directly blamed on the apathy or stupidity of the electorate.

        • “It is about establishing the limits and authority of the Federal of Government with respect to its citizens. That’s it.”

          Except that’s not what the Bill of Rights says. Only the language of the 1st and 10th Amendment actually does that. The 2nd through 8th are all affirming individual rights and NONE of those Amendments have an “except” clause for State Governments. Read it.

          It takes some serious legalese abstraction to make “shall not be infringed” and “right of the people” to have an “except” clause after it in regard to State authority.

      • They did not indent to restrict free speech on state level, because they were not operating on state level. In the time when the Bill of Rights was originally written, USA was actually a Union of States, in many ways still sovereign – and it was seen as utterly improper for the Federal government to impose limits on the States (including with respect to the social contracts that the corresponding States establish with their citizens, other than requiring a “republican form of government” to ensure that said contract is consensual). The understanding was that citizens of the respective State would enshrine the appropriate guarantees in the State constitution – which, indeed, is the case for most states (all have the equivalent of 1A, and most have the equivalent of 2A etc).

        The Constitution at the time is by and large a written contract between States and the federal government; the citizens didn’t really enter much into it.

  8. Funny, because the infringement is being perpetrated for the most part by STATE governments.

    Even pro gun states which issue CCW permits don’t do so based on the authority of the Federal 2nd Amendment. They proscribe permits as an exception to default state level carry bans by non-authorized people. In shall issue states, it’s a liveable situation but not ideal. In may issue jurisdictions, the exceptions are limited to the connected members of the public establishment.

    Either way, the problem is at the state level.

      • You cannot fix the most important bits at state level. That would be NFA, GCA, etc, and implementing federal preemption IAW 2A. That would do it, and return us to a constitutionally acceptable situation. So will everybody simply watching the Constitution die, worshipping Barry and his issue forever as “Dear Leader”, perhaps.

        • “Fixing it at the state level” here implies that the feds are not involved in gun control at all (which is what the article here argues) – that would mean instant death to NFA, GCA etc.

          Why do you need any kind of national preemption, though? Why is your state’s constitution not good enough for you?

  9. So in other words, we should allow infringement on our rights at the state level (by refusing to let the Feds prohibit states from infringing on them) in order to prevent infringement at the federal level? Sacrifice our freedom to keep our freedom? What the hell…. I get where the author is coming from, but his concision is dead wrong.

    • No, you should not allow the infringement of your rights on the state level, but you should use the appropriate instruments to protect and safeguard those rights. In particular, your state most likely has those rights explicitly protected in its constitution; so refer to the state constitution when arguing for them. If your state does not protect some right in the constitution, or protects it insufficiently (e.g. its RKBA clause is weakened by some kind of “subject to legislative regulation” provision), then lobby to amend the state constitution to improve that protection. And so on.

    • Short circuit the discussion! NEITHER fed nor state laws and regulations concerning firearms have any authority, everybody may ignore them. A declaration by ATF on its last day in existence to this effect would put us back to day one, which in this case would be a good thing. We have nothing but the second amendment. No law whatsoever. Think of it. In ANY OTHER AREA it would be a complete and utter disaster. Here it would be a blip for 2 weeks and over. All laws, all regulations, all bureaucracy, all prosecutions, murders, incarcerations, all the trillions of dollars spent, all are meaningless, were wasted, accomplished nothing. When will we stop?

  10. Through reading, careful study, and a lot of research, I have come to a similar realization and conclusion.

  11. So he is trying to make the point that if a state decides through its legislature to delete any reference in its constitution and laws to freedom of religion and imposes Sharia law, the U.S. Constitution/Bill of Rights cannot in any way be applied and the residents of that state are bound by this travesty?

    The bottom line is that the Bill of Rights does not give ay rights, it lit specific NATURAL rights that all of the people al by the very fact of their birth an which the government is prohibited from interfering with. That would mean that those same natural rights apply to the State governments as well, and States Rights be damned. These are not rights that ANY government or government agency can give or take on a whim, nor are they subject to social or democratic pressures.

    An if you want to get all nit-pick about it, the Second Amendment states that the right to keep and bear arms shall not be infringed, it does NOT specify who may not infringe the right, only that it may not be infringed.

    And I keep seeing references to the preamble to the Bill of Rights as though this is some sort of instructional guide as to the implementation of these rights, but I have NEVER seen that preamble included in the text of any Constitution that I have found. It was the first ten amendments that were ratified, NOT the preamble, which so far as I know is NOT a legal portion of the Constitution of the United States of America.

    • >> So he is trying to make the point that if a state decides through its legislature to delete any reference in its constitution and laws to freedom of religion and imposes Sharia law, the U.S. Constitution/Bill of Rights cannot in any way be applied and the residents of that state are bound by this travesty?

      Well, historically, this was exactly how it worked. Several states had a state religion at the time the First Amendment entered into force, and some had religious prerequisites to hold state offices. Neither the people who wrote the Bill of Rights, nor the state legislators, nor any citizens took its wording to assume that it applied to those state churches, and they lasted well into 1830s.

      So, yes. Provided that a state has a “republican form of government” (meaning that its legislature is freely and fairly elected), if that legislature votes to make Sharia the law of the land, that’s how it should be, at least in the world before the 14th Amendment and the subsequent introduction of the incorporation doctrine.

      >> The bottom line is that the Bill of Rights does not give ay rights, it lit specific NATURAL rights that all of the people al by the very fact of their birth an which the government is prohibited from interfering with.

      Now that is an actually valid point, but then you need to be careful about your wording. What the article says is that you should not apply the federal Second Amendment against the states. This doesn’t mean that you shouldn’t demand that the states respect your natural RKBA, only that Second Amendment shouldn’t enter that discussion at all.

      • Which is silly on its face. Shall not be infringed. Did you notice it did not mention “by whom”? Because it is “by anybody”. Anything else requires gymnastic twisting and turning to manufacture another interpretation. All states agreed, all states ratified, the question is over, “SHALL NOT BE INFRINGED” Trying to manufacture some other story is really acrobatic, but still, at base, a lie. The states agreed. The states were bound by their decision. The states do not have the right to suddenly pretend that what they decided really meant something else.

      • This conclusion is illogical based on its consequences. The intent cannot have been that in the event Montana decides to implement sharia law in can then put to death homosexuals from California, Christian preachers from Idaho and atheists from New York if they pass through it’s borders.

        Because the consequences are so absurd and undesirable it can only be that either the framers simply couldn’t have envisioned such happening (which seems unlikely) or else they intended the rights of the people to be in force in every state.

        It was never the case, even before the 14th amendment that ones rights to property or due process or free speech were variable between the states. A Virginian could legally own property in Maryland and everyone recognized his right to do so. The alternative interpretation, that each state was originally free to play it any way it’s people chose would create total chaos and anarchy. The 14a only formally affirms what was simply understood before it and what was largely unchallenged before the civil war, that every state had to respect the rights of the people from all others and that the citizens of any state were entitled to the protections of the constitution from action by the state or federal government.

    • Technically it was amendments 3 through 12 that were ratified. One of the two that weren’t ratified at that time is now the 27th Amendment.

    • Yeah, that’s correct. More to the point, the state can also direct that all mosques be burned to the ground with the worshippers inside. Remember “shall issue”, and the blood will run in the streets, gunfight at the OK corral, etc? Let’s have some freedom here, when there really IS a problem, let’s worry about it. If a few die in the meantime, well, the world is overpopulated.

  12. This is wrong, just wrong.
    United States v. Cruikshank is widely viewed as a mistake, and SCT has slowly overturned it and applied the bill of rights to the states including parts of the 1st, 4th, and 5th. In McDonald v Chicago they finally got around to incorporating the 2A to the states.

    You can see a list of the provisions of the Bill of Rights incorporated to the states here:

    http://en.wikipedia.org/wiki/Incorporation_%28Bill_of_Rights%29

    Keep in mind, this kind of BS states rights argument was used to justify mostly tyrranical reconstruction-era state behavior in the south.

    It is also wrong that “the power to protect our rights inevitably leads to the federal government defining our rights.” The bill of rights is a check on state and federal power and defines what state and federal legislatures cannot do.

    If you are going to be annoyed about the court, be annoyed that they act slower than a glacier and uphold enumerated rights before enumerated ones.

  13. “We the People” …

    The Constitution “tells” the Federal government what it must do, what it may do and what it may NOT do. I, as an individual, cannot remediate an infringement of my rights. That’s one of the reasons we have a government. The Federal government MUST rectify infringements of my rights, regardless of where those infringements originate.

  14. There’s a HUGE logical inconsistency in the idea that the Bill of Rights doesn’t apply at the state level.

    What good does it do to codify these already existing natural rights and protect them from governmental infringement if the states can completely ignore them? Being oppressed by a local tyrant is no better than being oppressed by one on the other side of the country.

    We can argue about who ought to be protecting our rights and how far the federal gov ought to reach into states’ business, but the bottom line is that NO branch of ANY government gets to violate them. Either these individual rights are protected, or they aren’t.

  15. >> What good does it do to codify these already existing natural rights and protect them from governmental infringement if the states can turn around and completely ignore them?

    It does good because you know that the feds cannot do this. To ensure that neither can the states, you codify it on the state level, as well (as state constitutions do).

  16. I agree with the main point of this article. However, I believe the author glossed over an important piece of evidence supporting their argument. That is, if the Bill of Rights in any way limited the States, why did States feel the need to draft and ratify their own State Constitutions and Bills of Rights? The answer is that they recognized that The Constitution was a document limiting Federal power, and wanted to codify similar protections for their own residents against State infringements on those same preexisting inalienable Rights.

    • “…why did States feel the need to draft and ratify their own State Constitutions and Bills of Rights?”

      One of the reasons is because, in order to become a state and join the union, the U.S. Constitution requires that they have a republican form of government. I suppose that doesn’t absolutely require that a state constitution includes a bill of rights. But it pretty much does require the existence of a state constitution, as that’s the only way to define such a government.

      • At the time the Union was formed, the federal constitution didn’t even have a “Bill of Rights”.

        Also, remember that most states in the Union were formed and added to it long after the federal Bill of Rights was there; yet they still saw fit to protect those same rights in their state constitutions when those were written. Look at pretty much any state constitution written after the Bill of Rights, and you’ll see that it copies a lot of it.

        • The question is, were they copying the U.S. Constitution because they interpreted it the way the author of this article does, or just copying it because, at that point in history, there simply weren’t a whole lot of functioning constitutional republics to serve as examples? I would imagine the answer to that lies in the way the various state constitutions are worded, but I must admit, I haven’t read all 50 state constitutions (especially Alabama’s 350,000-word monster!).

        • It went both ways – Bill of Rights used some of the pre-existing state constitutions as inspiration, and it in turn inspired the state constitutions. But the latter usually didn’t copy it verbatim; e.g. in my state of Washington:

          “SECTION 24 RIGHT TO BEAR ARMS. The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.”

          My point was rather that the fact that the states even deemed it necessary to incorporate such protections into their constitutions, even as late as at 1889 (the date of the above), would seem to indicate that Bill of Rights was not seen as sufficient.

    • Another reason is that states may provide protections for their citizens beyond that of the federal constitution.

  17. Having the Bill of Rights apply to the states does not give the feds the authority to define our rights. Applying the restrictions as written, because they are absolute restrictions, would reduce the ability of the feds and the states to infringe upon our rights. The problem, and the inherent flaw in centralized government, is that the federal Cerberus has tricked the people into believing that one head gets to interpret how the Constitution defines and limits the powers of the other two heads.

  18. BS flag. “CONGRESS shall make no law” is how you prohibit ONLY the fed govt from doing something. RKBA was not included in that Amendment. “Shall not be infringed” is how you prohibit ANYBODY from doing something, not just legislators but administrations, bureaucracies, local police departments and wannabe dictators all rolled into a ball. Freedom of speech and religion was not included in that Amendment. Utah should be able to declare Mormon the state religion and allow as many wives as they wish. NO ONE, from Fed down to township can interfere with RKBA. How it got precisely backwards required a lot of people with much more education than the people who wrote it, in order to lie and lie and lie with such apparently semen-free smiles.

    READ them. What they say is OBVIOUS. The only thing you’re left with is trying to figure how to twist meanings on their head in order to pretend those Amendments mean something other than what they so clearly say.

      • So, like, you can’t read it? You think wiki has some basis in fact? So, you can’t think for yourself? You consider yourself inferior to the elites? Speak up, now, or perhaps provide a link!!!

        • I can read it for myself, but I’m also well aware of the historical context in which it is written and the surrounding arguments – and I would like to remind that whether the Bill of Rights was meant to restrict the states in any way was, in fact, one of the key arguments in its adoption (no-one back then claimed that it did so, not even its supporters – but some people voiced the concern that it could be so construed later, and deemed that unacceptable intrusion on state sovereignty).

          And I have no idea what the factualness of the wiki article in question has to do with it. It simply tells about the Supreme Court case that ruled on the subject. Are you claiming that the court case didn’t happen, or that wiki does not cite the court opinion correctly, or what?

          (FWIW, the reason why I linked to it is not because I “need interpreters”, but because I didn’t see the point in repeating the concise and well-reasoned court argument in that case.)

    • Exactly right Larry. A casual reading of the Bill of Rights shows an example of an Amendment (the 1st) that restricts only the Federal Government. The language is so simply that it takes professional and determined abstraction to see it any other way. The only thing Barron v. Baltimore proves is that the Supreme Court has been making incorrect decisions for more than a century and a half.

      • A “casual reading” does not undo the actual historical record. Your modern belief about what something meant cannot undo what the actual people that wrote it and adopted it thought it meant.

        • “The actual people” who wrote and adopted it had as varied opinions of what it meant as we do today. Probably every quote by every founder affirming what you want to believe about the Constitution is going to have a dissenting quote by another founder. From a legal (and practical, I might add) standpoint, the only thing that matters today is the actual text of said document.

    • The main argument against ratification of the Bill of Rights back in 1789 was that people would later start arguing it limited what the states could do. It’s a perfectly valid opinion to think that the Bill of Rights should have applied to the states from the get go. As a matter of simple facts, however, it did not, and no one at the time thought it did. That is simple historical fact. If you do not believe it, show me anything from the 1780’s or 90’s that says anybody thought any of the first eight amendments to the Constitution imposed any limitations on state government.

      If you want to see how constitutional amendments were written for the purpose of limiting the powers of the states, read the 13th and 14th amendments.

      • If you want to see how that was handled, so elegantly that it is hard to believe, consider the difference between the first and second amendments. One applies to only the federal government, one applies to everyone, including those conquered in overseas wars, the territories in the Yukon or Antarctica, EVERYWHERE anytime, no questions allowed.

        • Plain language over original intent for constitutional interpretation is an attractive argument. However, once you lose all sight of original intent, you’re well on your way to the “living constitution” school of constitutional interpretation that the left loves so much.

          Like it or not, the original intent of the second amendment did not contemplate imposing any restrictions on the states’ ability to regulate firearms. If you disagree, get back to me when you find something from the 1780’s or 90’s that says otherwise.

    • Strange, lots of people find obvious meaning upon reading those documents that are completely different than you.

      So maybe tone it down a notch.

      • This so-called “obvious meaning” comes from reading the second amendment in isolation and maybe in the “context” of reading it along with only the first amendment. If you read the whole constitution and all the amendments, preambles, etc. together from start to finish all at once, you will see something quite different. When the Constitution or the amendments limit state power, it specifically says so. If it only limits federal power and not state power, it usually doesn’t specify anything. For examples, look at Article 1, section 10; Article II, section 1, clauses 2-3; Article IV, Article VI, and the 14th amendment, the 15th amendment, the 19th amendment, and the 26th amendment. Compare how these parts are written to the rest of the Constitution.

        The preamble to the Bill of Rights actually says the Bill’s purpose is “to prevent misconstruction or abuse of its [the U.S. Constitution’s] powers.” How in the world is something that is proposed for the very purpose of further limiting federal power going to be turned on its head to limit state power instead?

        The whole “the second amendment doesn’t have to say who it applies to” is just cherry picking the amendment out of the context of the federal system as it existed before the civil war and the way the Constitution, the Bill of Rights, and subsequent amendments are written. The document itself (as well as the historical record) just doesn’t support the argument that because the the Second Amendment doesn’t specifically say it only applies to the federal government, it therefore applies to the states.

        It’s fine to have the opinion that the Bill of Rights should have always limited state power. I actually agree with that. But this is just an opinion. It’s not what the primary author of the Bill — James Madison — thought he was doing, it’s not what the states who ratified it thought they were doing, and it’s not what actually happened in practice.

  19. “The founders viewed the right to keep and bear arms as a natural right that stood as a part of English common-law for nearly a century.”
    The federal government can’t change our natural right, but the states can? Doesn’t make sense to me. But dammit Jim, I’m just a country nurse, not a starship captain.

    • The states cannot, of course. A natural right is a natural right. The wrong (according to TAC) claim here is that it’s the 2nd Amendment which doesn’t let the states do that. If that were the case, the states wouldn’t have needed their own RKBA provisions in their respective constitutions, which practically all of them do.

  20. These 10th amendment people are their own worst enemies. Self defense is a natural right, I don’t see how it’s ok because people calling themselves the “state” instead of the federal government decide to trample on that right. So, Obama can’t take my guns, but Cuomo and Bloomberg can? That doesn’t seem like a right at all.

    It’s funny how they don’t seem to apply “states’ rights” to free speech or any other right.

    While I do agree that “selective incorporation” is a made up doctrine, the 14th amendment was intended to apply to Bill of Right’s to the states as Bingham intended.

    Furthermore, the 10th amendment doesn’t just reserve things to the “state” it also uses the word people in the same sentence. Being that words have meaning, the word people has no more or no less significance than the word state… And if the 10th amendment was just for “states” then why would they include the word “people” as well.

    -Jared

    • Right. The 10th reserves the rights to the States and the People, but doesn’t say anything beyond that. So the States, and the People who are (at least, in theory) backing the government of those states (as it is supposed to be republican), codify the exact arrangement in their state constitution.

  21. “This ridiculous 20th century invention of the Supreme Court known as the “incorporation doctrine” has been used to chip away at the 10th amendment and state sovereignty ever since.”

    It occurred to me that SCOTUS unilaterally expanded its own power with that singular ruling, which is pretty damned scary.

    But if SCOTUS has no authority to prevent states from infringing on our rights, then the liberal, urban states (New Jersey, Connecticut and others) are doomed to drown in their own socialist septic tanks.

    • In the original constitutional framework, the only guarantee that the federal government can enforce on the states is that they have a “republican form of government”, which is generally assumed to imply separation of powers with an elected legislature. So under that framework, if the people of those states really want to become “socialist septic tanks”, and express that desire through a republican system of government, then that is what they should have.

      • I agree that we get the kind of government we deserve. But I can’t describe how resentful I am that Illinois, once a rural, agricultural state with a big city, has now become politically engulfed by that city and its statist attitude. Farms and small towns have lost population and voting power, and we now live at the mercy of Chicago hoplophobic liberals.

        If the US Supreme Court can’t save us, then only God can.

        • This is the inevitable consequence of urbanization, which is itself an inevitable consequence of industrialization – which no developing society can avoid (the only other option is to remain an agrarian idyllia, like Jefferson envisioned – but that will only last until some industrialized neighbor will decide to make a grab).

          Having said that, the nice thing about USA is that it is still a federation of states, and different states exercise different policies in that regard. There’s a whole spectrum, from states that are completely dominated by megapolises, to states that are almost entirely agrarian, and with many intermediates in between.

      • California Constitution, Article I, Sec 24
        “Rights guaranteed by this Constitution are not dependent
        on those guaranteed by the United States Constitution.
        In criminal cases the rights of a defendant to equal protection of
        the laws, to due process of law, to the assistance of counsel, to be
        personally present with counsel, to a speedy and public trial, to
        compel the attendance of witnesses, to confront the witnesses against
        him or her, to be free from unreasonable searches and seizures, to
        privacy, to not be compelled to be a witness against himself or
        herself, to not be placed twice in jeopardy for the same offense, and
        to not suffer the imposition of cruel or unusual punishment, shall
        be construed by the courts of this State in a manner consistent with
        the Constitution of the United States. This Constitution shall not be
        construed by the courts to afford greater rights to criminal
        defendants than those afforded by the Constitution of the United
        States, nor shall it be construed to afford greater rights to minors
        in juvenile proceedings on criminal causes than those afforded by the
        Constitution of the United States.
        This declaration of rights may not be construed to impair or deny
        others retained by the people.”

        I’ll note that specifically:
        “Rights guaranteed by this Constitution are not dependent
        on those guaranteed by the United States Constitution…
        This declaration of rights may not be construed to impair or deny
        others retained by the people.”

        It would seem you could argue that all of CA gun legislation is undone by this. My own state of Michigan has similar notations in its founding rights to KBA for personal and state defense.
        And also: “Sec. 23. The enumeration in this constitution of certain rights shall not be construed to deny or disparage
        others retained by the people.”

        Moreover, because the RKBA is affirmed by a constitution either implicitly or explicitly, this “shall not be construed to deny… [rights] retained by the people” wording seems to indicate that any rights phrased as belonging to the people in specific or in part, id est, the Second Amendment in question, that the state constitutions, even that of one of the most gun-restrictive states in the continental US, holds itself to the words “SHALL NOT BE INFRINGED”. To argue anything else, I’d say, is tantamount to justifying the unlawful seizures of rightfully owned property and the unlawful killings of those naturally expressing their lawful right to be armed- that is to say, rendering those officers of the government in support of such gun control measures as principals in treason for levying a war against its people in direct conflict with both the state and federal protections not only to impair the RKBA but also in violation of the remaining rights surrounding it.

        Ladies and gentlemen, we’ve been had.

        • And now I can’t sleep, so here’s another zinger.

          Article I, Sec 1, New York Constitution: “No member of this state shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgement of his peers, …”

          Law of the land refers to Article VI of the USC, which, in thumbing my nose at liberals implies to mean that the entire USC is held as in force within the state of New York in addition to its own legislated laws. aLternatively, you could say since it only prevents disenranchisement via the USC, it doesn’t enable rights not enumerated within the State Constitution. Judgement of his peers also seems to indicate that NY is more of democratic rule than republican.

          California still isn’t off the hook though.

    • Well, I, for one, am prepared (but not ready, sigh) to support an amendment to cure all these mentioned problems, but I cannot imagine what it would say, although I am certain firearms would not appear in the text. We need restrictions on judges and justices who think they are there to MAKE law, that is the job of legislators. And there should be punishments (like removal!) for having a ruling overturned by a superior court.

      • Here’s some stuff we might be able to agree on, Larry. I think these changes to the federal government’s structure would help:

        1. One six-year term for the president.
        2. A maximum of two terms for senators.
        3. Change house terms to four years and limit service to two terms.
        4. Federal judges at all levels serve no more than 20 years.
        5. Federal elected official and judge pensions cannot exceed 50% of total pay earned while in office.

        I don’t like constitutional amendments that try to articulate principles because words always get twisted. Better to keep it simple and direct.

  22. It doesn’t “permit” you to exercise your rights, but simply protects them from governmental overreach at all levels. We would be absolutely right in exercising them whether we have a ratified Bill of Right or not, and against all laws to the contrary.

  23. I agree with the author 100% that the Constitution doesn’t “give” rights. It affirms and enumerates rights that already exist naturally. You are warranted them just by being a living person.

    But does the Bill of Rights apply to the States? I’ve been involved in this argument before, and suffice to say there isn’t a golden pill of historical evidence that “wins” it. It may come as a suprise to some, but statesmen and politicians in the 18th Century were often as divided about Constitutional interpretation as they are today, even when they were still in the process of drafting it. For every primary source quote that the author has, there is assured to be an opposing quote by one of his peers. I will make these two counter points here;

    1) “People” as referred to in the Bill of Rights means, has always been accepted to mean individuals. The right to privacy of the “people” (Amendment IV) is not some collective right any more than the right to keep and bear arms that the “people” enjoy. So if these rights are indeed individual rights, to be enjoyed and exercised by individuals, and more importantly are rights that even the author claims exist apart from and preceedes the Constitution, how is he claiming that a collective authority (a State) should have the power to deny them? I think it’s extremely contrary to say that rights exist outside of even the Constitution, but that a State has the power to deny rights.

    2) If the entire Bill of Rights is only limiting to the Federal Government, why is Amendment I the only text that specifically states that? Amendment I states; “Congress shall make no law”. Other Amendments are not specifically targeting a governmental body, but individuals. Amendments I and X are the only limiting Amendments, specifically limiting governmental (i.e. Federal) powers. Amendments II through IX are rights affirming Amendments, specifically naming the rights enjoyed by individuals. Read it for yourself. If all of the Bill of Rights was targeting only the Federal Government, why is it that only Amendments I & X have language to that effect?

    I am a huge supporter of The Tenth Amendment Center and a big proponent of Constitutional Federalism. But I really believe that this argument is wrong. Not only Constitutionally, but more importantly, it’s morally wrong. The Federal Government is the boogy man lately of liberty loving peoples and rightfully so, but States have a history just as abusive towards our rights and liberties. The Constitution is a balancing act, that citizens may use both levels of government, State and Federal, to protect their rights against the other. To say that any government has the Constitutional power to suppress our liberties is not a road we want to take. That’s a tacit admission that a State may deny our liberty, property or even our lives. And if that is what the Constitution means, then I’m sorry I ever took an oath to it.

    Like the author said, man’s rights existed long before the Constitution did, and will exist long after the Constitution is gone. I support the Constitution only because it’s a darn good enumeration of the rights I know I already have. If what the author says is true (which I don’t believe), then I would never pick up a copy of the Constitution again. It will become another useless government document to me; no more and no less. In short, the author’s appeal to the authority of the Constitution to permit complete State soverignty over my life and liberties has no chance of working with me or people like me. We will either disagree with his premise and continue to see the Constitution as an enumeration of rights against the Federal AND State governments, or we will be convinced by him that States are soverign over our natural life and liberties, and reject the Constitution and it’s authority as a social contract.

    Cheers.

    • Well presented, Sambo82, but Court constructs like “selective incorporation,” “substantive due process” and my all-time favorite “penumbras and emanations,” still drive me crazy.

    • If you take a big picture view of whether the Bill of Rights should have applied to the states from the get go, it basically comes down to the decision to punt on slavery to get the Constitution ratified. The fact of the matter is the states did trample all over individual, natural rights (including the right to keep and bear arms) and everyone knew it. Fortunately for them, the folks in the legislatures were not in the trampled upon groups. Everyone also knew the federal government wasn’t going anywhere productive unless a blind eye was turned to the trampling for the time being.

      The Civil War was eventually fought and the 13th and 14th Amendments with the 14th’s guarantees of “privileges and immunities,” “due process,” and “equal protection” were ratified. The vague language of the 14th Amendment did not leave any practical way to give effect to it without the courts getting outside of the plain language of the text. Selective incorporation was the solution. It might not be the best solution, but it was the one that got picked up and ran with.

      Sambo82, you’ve clearly studied this stuff a lot as have I. Can you cite me to a source document (something from the 1780’s or 90’s) that shows anyone thought any of the first eight amendments should impose any limits on state power? I know people opposed to ratification of the Bill of Rights argued that people would later misuse the Bill of Rights to limit state authority, but can you find something that shows someone thought the Bill of Rights was intended to limit state authority or thought that it did when properly applied?

      • TT, I’m at work so there’s no way I can find a source about it, but I remember that alot of the Anti-Federalist opposition to the Constitution was because of a lack of protection for individual rights as well as State powers. There was basically two parties within the Anti-Federalists in that regard. I’ve been in a dragged out conversation on it before, and I’ve been exhausted of the subject. At the end of the last conversation, both me and the other gentleman just had to agree to disagree. But look through the Anri-Federalist papers and I’m sure you’ll find some writings on it.

        But like I’ve said earlier, people at that time disagreed as much then as they do now, as I’m sure you know. Some of our earliest political campaigns were horribly scandalous, and disagreements over what the government ought to be were pronounced and universal. Every quote by any Founder about what the government should be, is going to have a counter quote by another Founder. What ultimately matters, is what the Constitution actually says. That’s our legal framework.

        What we do know is that Amendments I and X limit the Federal government. They state that explicitly while the other Amendments do not. We also know via the 10th Amendment that certain powers can be “prohibited by it to the States”. And we know that Amendment’s II through IIX guarantee individual liberties.

        IMO, when the entirity of the Bill of Rights is considered, there’s no way to rationally claim that the individual rights enumerated there in are subject to the provisions of the States. If that were the case, Amendments I-IX are completely superfluous. The Tenth Amendment alone would have sufficed had the intent only been to guarantee State sovereignty.

        • The preamble, which is part of the entire Bill of Rights just like the preamble is part of the Constitution, says the Bill’s purpose is “to prevent misconstruction or abuse of its [the U.S. Constitution’s] powers.” Since the Bill’s stated purpose is to further limit federal power, saying the Bill actually limits state power turns the Bill’s stated purpose on its head.

          Going by plain language and a fair reading of the whole document, when the Constitution and the amendments limit state power, it specifically says so. If it only limits federal power and not state power, it usually doesn’t specify anything. For examples, look at Article 1, section 10; Article II, section 1, clauses 2-3; Article IV, Article VI, and the 14th amendment, the 15th amendment, the 19th amendment, and the 26th amendment. Compare how these parts are written to the rest of the Constitution.

          I agree that it would have been better if the Bill of Rights applied to the States from the start, but it didn’t as a matter of historical fact. It was only the radical changes to the federal structure brought on by the Civil War and the gradual enforcement of the post-Civil War amendments that changed this.

        • It’s true that the text of the Constitution specifically by name mentions the States when targeting them for specific restrictions, but that’s because the Federal Government is the subject of most of the Constitution. Articles I-III are dealing with the formation of our three federal branches of government. That’s the purpose of those articles. You have to mention the States specifically when the subject of the rest of it is the Federal Government. But naming the States specifically when referring to them to specific restrictions or powers (a grammatical necessity when those references are embedded within an Article dealing with the Federal Government) does not mean that the rights of the People that “shall not be infringed” and “shall not be vioated” aren’t also referring to the States as well.

          But ultimately you argument is, IMO, invalidated by the very existence of the 1st and 10th Amendments. They contradict your theory by specifically limiting the Federal Government in text. If what you say was true then the Founders screwed up the Bill of Rights in two paramount ways;

          1: they added, for no reason, the completely superfluous wording of the 1st and 10th Amendments

          2: they added the completely superfluous 2nd through 9th Amendments, when just an Amendment regarding the guarantee of State sovereignty would have done.

          If they intended States to be as tryranical as they pleased and to have complete sovereignty over their citizens, then there’s no reason whatsoever to include the guarantee of individual rights in the Bill of Rights. All you have to do is guarantee State sovereignty. The rest of it is, as I’ve said, completely superfluous.

          So it’s my opinion that you can either read the text plainly as a guarantee of individual rights and it remains sensical and consistent, or abstract it to the point where States do not have to recognize individual rights and the Bill of Rights suddenly becomes inconsistent and contradictory. IMO the simplest explanation that follows the text as written, is more reasonable than the one that requires abstraction.

        • It is an indisputable fact that the Bill of Rights (at least the first eight amendments anyway) did not act as as a limit on state power until well after the Civil War and the amendments that followed that war.

          It’s perfectly fine to argue the Bill of Rights should have limited state power from the start. I actually agree with this argument. But it’s quite another thing to claim as a matter of historical fact that the Bill of Rights actually did impose limits on state power from the beginning when no such thing happened.

          As far as the language of the Constitution goes, just as you point to language in the 1st and 10th amendments to argue that the Bill of Rights should apply to the states in and of itself, I point to lots of other language in the Constitution that shows when the authors wanted to limit state power, they said so. It’s wash at best.

          What’s the point of arguing the Bill of Rights should have applied to the states when what actually happened is that the Bill of Rights did not function as a limit on state power until after the adoption and enforcement of the 13th-15th amendments? (If you think I am wrong on this fact, please give me an example where state power was limited by the Bill of Rights prior to 1860.)

  24. Very well written and quite informative. Thanks to Mr. Landreth and TTAG for a very important article.

  25. 2A is not worth the paper it is written on why? We can have no machine guns, no short barrel shot guns , etc. that is why I say, we have no 2A……….. EVERY THING the founders wanted have now become a joke ,,, We lost LIBERTY ,,,long ago…WAKE UP AMERIKA …YOU ARE NOT FREE!!!!!!!!!!!!!!!!!!

  26. The incorporation provision isn’t nonsense. It is a flaw in the Constitution that the Founders only wrote the Bill of Rights to apply to the federal government and not to the state and local governments as well. Do you really want to live in a country where each state can restrict freedom of speech as it pleases, can restrict gun rights as it pleases, can restrict religion as it pleases, where the local police need no warrant to just barge into your home, where you do not have your right to remain silent protected, etc…?

    • >> Do you really want to live in a country where each state can restrict freedom of speech as it pleases, can restrict gun rights as it pleases, can restrict religion as it pleases, where the local police need no warrant to just barge into your home, where you do not have your right to remain silent protected, etc…

      No, but that’s what the state constitutions are for.

  27. BS, the states cannot override the U.S. Consitution, the 2nd. Amendment is law. The Bill of rights help cover our ass. Let’s not reinvent the law. What it is, is what it is! I’ll stand on my front porch and defend this right, just like another person did, they the government can not infringe………. In case no one knows what those little dots mean, it means in my book Period!

  28. Hmmm, so the states can destroy voting rights in state and local elections? State government need not use Miranda warnings, and can force an individual to incriminate himself? The state government can search through all of my property at will? The state government can confiscate all weapons from anyone at any time? The state government does not need search warrants? The state government can force me to house state police in my home? The state government does not need to give me a speedy trial?

    Based upon his reasoning, all of those things could legally happen because the Bill of Rights has no power to guide state or local governments.
    Yeah, I don’t think so.

    • State government is bound by the constitution of the corresponding state. They usually have all the same right and freedom protections as the federal one, and often go even further.

      • I would argue that the state constitutions are written, in part, with the language they have because without certain language they weren’t apt to be admitted to the union. I’m not convinced that the wording of state constitutions is good evidence that the BoR isn’t binding on the states. However, if it is not, who would be the arbiter if a state were to disregard it’s own constitution? Would it be up to the people to either form an army and depose the state government or else flee to some other state? Would the federal government be powerless to intervene since it cannot enforce a state law? Even if the BoR wasn’t originally legally biding on the states it has always been de facto binding since no one would conscience the consequences if it weren’t. In any event this was all cleared up by the 14a, necessary because the civil war was surprising only in that it took so long to break out.

        I don’t want to sound like a ‘living constitution’ advocate but if the BoR wasn’t binding on the states I don’t believe that the US could long exist as a nation. Much of the weak wording of the Constitution is a result of tap dancing around slavery and it’s this vary weakness that results in the Civil War. Fortunately the 14th then removed all doubt and as it stands the BoR is binding on the states, and that can’t be a bad thing.

        • “However, if it is not, who would be the arbiter if a state were to disregard it’s own constitution?”

          Arguably, the Feds coutd intervene at that point, citing it as a violation of the “republican form of government” clause.

        • Also, the BoR is not binding on the states as a whole. Individual provisions are binding through incorporation, which is on a case by case basis (and hence can also be judicially reverted on a case by case basis!). By now we’ve got the entirety of BoR covered, but the ground is not as solid as I’d like.

          I agree in principle that having universal rights protections is a nice thing to have. But, IMO, it should have really been explicitly made a part of the requirements for the states, like “republican form of government” is, so that 1) there’s no doubt about its scope, and 2) feds can be appealed to and intervene to prevent state-level abuses.

    • +1, The Civil War settled this question. At this point, State rights are largely cosmetic and vestigial. Any State law can be overruled by the federal court system and the Federal government has a standing domestic army to enforce its own laws in all of the States. Maybe if the States started bucking Federal authority or when the Federal Government finally spends itself into insolvency things will change.

  29. That Civil War was about states’ rights is a staple of Southern propaganda during the war. It was never actually true, however. It was about states’ rights in another sense – the slave states wanted slavery to be a protected institution throughout the Union (so that fugitive slaves would be treated as property even in free states etc), while free states wanted to enforce their own policies on their territory, and even engaged in legislative nullification of federal laws to that regard. This is evident when you look at the constitution of the CSA – unlike the USA, it not only explicitly recognized slavery, but mandated it for all the confederate states, current and future.

  30. The author makes a lot of great points, and I would readily agree with him if today’s date were May 20, 1850. Even if the author is correct in his reasoning, history has and will continue to prove him wrong.

  31. So explain this to me…if the Bill of Rights is a law the Federal Government must follow…then through the fact that Federal laws overwrite State laws and no State can pass a law that is allows for something illegal on the Federal level, then shouldn’t that apply to the entire country? For example, the Federal gov’t can’t restrict freedom of worship…but if the state of Montana says “everyone will be Christian and go to chruch on Sundays” it’s a violation of the law as Montana would be violating a law set at the Federal level…

    On a separate note, that means the NFA, GCA, and hughes Amendment are completely unconstitutional…to argue differently shows intellectual dishonesty…

    Thoughts?

    • Like a lot of stuff, the answer to your question is complicated. If you look through the comments section for this post you’ll get a good idea of the legal and historical problems facing those trying to apply the constitution. When the constitution was drafted politics were as acrimonious if not more so than today. All you have to do is look at the Federalist and Antifederalist papers to understand how many dissenting opinions were out there. The constitution is in effect a giant compromise between a bunch of educated men who couldn’t agree on much other than the fact that the way England was doing it was bad and they didn’t want to be subject to a giant omnipotent government again. The constitution and its amendments had to be ratified by the states (huge simplification here but you get the point.) So the drafters came up with the main document and then wrote a bunch of line-item amendments so that if one item failed, some of the others had a chance of passing. There wasn’t a single unified opinion at the time as to its scope and intent. Then, as now, some people wanted it to be the rule of the land while others meant it simply to restrict the Federal government.
      Since then, the balance of power has shifted from the states to the Federal government. You can see this in the number of states’ rights cases that get punted to the Supreme Court. After the civil war, slavery was outlawed. The problem with this, as the author states, is that if you believe that the constitution was strictly meant to limit the federal government, than the 13th amendment would have had no force at the state level. So the law was amended to “incorporate” that “right” to the “people.” Again, I’m over simplifying. What parts of the Constitution were incorporated back to the individual citizen has been and will be the subject of vigorous debate for the foreseeable future.
      The challenge we face now is that some people want select parts of the constitution and its amendments to apply to the states and individual citizens. At the time the constitution was drafted, the bill of rights may have only been intended to limit national government. The picky-choosy, point of view has legal president behind it now, as much as I wish it was otherwise. This is an inconvenient truth for those of us who believe that “shall not be infringed” is an absolute. The challenge is that while those who fought the revolutionary war with their own guns probably were in favor of individual firearm ownership in the abstract, the thrust of that sentiment at the time seems to have been built around giving states the ability to raise citizen militias against Federal over-reach. Personal defense was seen as part of settled common law at the time. We have a tendency now to view the constitution as a totality, ignoring the historical realities at the time of its drafting. The reality is that most of the states wanted the federal government to have as little power over them as possible. So they hobbled it so they could go on making their own laws as they saw fit. Hell, the U.S. didn’t even have a standing army until well into the 20th century.
      As to the NFA, GCA…etc, you’re going to run afoul of the commerce clause there, another debate with rabid partisans on either side. Federal and state law is ever-changing. What is legal now is hotly debated by revisionists, Reconstructionists, and opportunists. You have to look no further than the recent supreme court decisions, most of which run on a 5-4 split to see that what is obvious and clear to many of us is up for debate.

  32. Doesn’t the sixth amendment essentially say where the federal government is bound by the constitution so are the states?

    http://en.wikipedia.org/wiki/Article_Six_of_the_United_States_Constitution

    It makes no sense that where the federal government is restricted from doing something that state governments would be allowed to do those things.

    Take slavery, for example – the 13th amendment prohibits slavery in the US anywhere. This amendment not only binds the federal government, but also the states.

    Why would this principal of “greatest restriction of power” not apply to the states with regards to the second amendment?

    • I should read the constitution more often . . .I knew this was in there but kept thinking it was an amendment and so couldn’t find it. Thanks for pointing out Article 6.

  33. The Constitution and Bill of Rights are the supreme law of the land. No where does the Constitution or Bill of Rights grant the individual states to right to nullify the provisions thereof. The author needs to go back to school

    • We more or less caught up to this idea through the hundred years that passed between 1865 and 1965. Prior to 1865, not even close.

    • Rather than insulting my intelligence, perhaps you would be so kind as to show me where I have erred.

      The federal government created by the states, via the Constitution, exists to serve the states. Until the states delegated some powers to the new federal government, those powers belonged to the states. The states, of course, delegated only some of their powers to the federal government while retaining most of their powers for themselves. The 9th and 10th amendments make this crystal clear.

      • The protections afforded by amendments two and four through eight were not extended to slaves at all prior to 1865. For the most part, they provided no protection for black people as a whole until well into the 20th century.

        • Obviously those were points of contention leading to the Civil War and Civil Rights Movement.

  34. The author states:
    .
    “. . . . The founders viewed the right to keep and bear arms as a natural right that stood as a part of English common-law for nearly a century.

    It was a given!

    It wasn’t until the ratification of the Bill of Rights in 1791 that the prohibition against federal “infringement” of this important natural right was codified into law via the 2nd amendment.”
    .
    The author contradicts his own arguments!
    .
    The Bill of Rights (including its 2nd Article) codify some of the “unalienable”, Natural, or God-given Rights that THE PEOPLE have always had.
    .
    Governments have Powers. PEOPLE have Rights.
    .
    A Bill of Rights was demanded by the legislatures of the States on behalf of THE PEOPLE of those States as a condition for ratifying the Constitution itself.
    .
    None of the articles of the Bill of Rights pertain to the States. All of them pertain to THE PEOPLE.
    .
    The 2nd Article specifically articulates the unalienable RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS, and that that Right SHALL NOT BE INFRINGED.
    .
    It does not grant any Power to the States but acknowledges that the RIGHT TO KEEP AND BEAR ARMS belongs solely with THE PEOPLE, and that that Right SHALL NOT BE INFRINGED!
    .
    Q.E.D.
    .

  35. Opinion: The Second Amendment to the United States Constitution did and should have limited the authority of the federal, state, and local governments to restrict the right to keep and bear arms from the time of its ratification in 1791 through today.

    Fact: From 1791 through today, the federal, state, and local governments have passed numerous laws restricting the right to keep and bear arms that range from minor inconveniences to outright prohibitions on gun ownership.

    Fact: The Second Amendment was never used to invalidate any law at the either the federal, state, or local level from its ratification in 1791 until 2007.

    Opinion: The Supreme Court is unlikely to extend the protections of the Second Amendment beyond the right to keep limited types of firearms in the home.

    Opinion: The NRA has done a great job over the years of protecting and expanding legal recognition of gun rights through the federal and state legislatures.

    Opinion: The NRA and other gun rights organizations have done a terrible job over the years of educating gun owners about the best sources of protection for their gun rights by over-emphasizing the Second Amendment to the United States Constitution. This has led many, if not most, gun owners to mistakenly believe the Second Amendment to the United States Constitution provides a good source of protection for their gun rights.

    Opinion: The NRA (and other gun organizations) should start efforts to protect gun rights through state constitutional amendments in those states that do not have sufficient constitutional protections.

  36. Now wait a moment, I think I see a silver lining in this guy’s flawed interpretation of the US Constitution. Based on his flawed logic the federal government is not able to infringe on my gun rights SO… goodbye ATF, NFA and FFL’s and a whole slew of other federal laws that involve infringing on my gun rights.

    The NC state constitution (article 1 section 30) also prevents the state from infringing on my gun rights (other than concealed, which I’m licensed by the Sate to do).
    http://www.ncleg.net/Legislation/constitution/article1.html

    Wonder what he thinks about that?

    • Correct, the 2nd Amendment was intended to prohibit the FEDERAL government from infringing on our natural/unalienable right to keep and bear arms. As such, ALL federal gun “laws” are unconstitutional because (1) the federal government is not given any such authority in Article 1, Section 8 and (2) the federal government is expressly prohibited from doing so by the 2nd amendment.

      The North Carolina state constitution prohibits the STATE of North Carolina from infringing on your right to keep and bear arms, so one could argue that any North Carolina STATE gun “laws” violate Article 1, Section 30 of the North Carolina state constitution.

      Now that we’ve cleared that up, I’m interested to hear more bout my “flawed interpretation of the US Constitution”.

      • Admittedly I’m not a lawyer or legal scholar, but despite you thinking it’s ridiculous (hence your flaw), the 20th century invention of the Supreme Court known as the “incorporation doctrine” is current case law.

        To steal from wikipedia:
        The Supreme Court has used the Due Process Clause of the Fourteenth Amendment (interpreted, however, to have the same meaning as the 5th amendment) to apply most of the Bill of Rights to the states through the process and doctrine of selective incorporation. Therefore, as to most, but not all, provisions of the Bill of Rights, Barron and its progeny have been circumvented, if not actually overruled.

        As for the State not infringing on my rights to keep bear arms, explain to me how the pistol purchase permit I have to get from my county sheriff isn’t a clear infringement on both the State constitution and 2A.

        • Case law and original intentions are two completely different things. The Constitution means what those who drafted and ratified it said it means. Read the notes from the various state ratifying conventions – they are very enlightening.

          As I said already, NC state gun “laws” violate the NC state constitution. Federal gun “laws” violate the US Constitution.

          I think that you and I agree that NO government – federal, state or local – has the right prevent us from keeping and bearing arms to protect ourselves and our property.

        • putting all the current laws aside, if we read the many letters, etc. of the FOUNDERS , we very clearly see that they did not then see guns as evil , but viewed all government with great distrust… so today we have 2A not as the founders wanted… twisting meanings and clear intent of the law as written by our founders…. PROVES by history that they were right . and they would view today very sadly ………They gave us LIBERTY . as Ben Franklin said you have a republic , IF you can KEEP IT…and it was paid for in BLOOD and much PAIN. NEVER GIVE A INCH ON 2A… history is proof that all GOVERNMENT MUST BE limited … The Bill of Rights is the LAW of the land ,, no higher laws ever….not even local or state…

        • Yes, we agree no government should prevent us for keeping and bearing arms. Further I don’t exactly disagree with your notion of original intent (I prefer a strict interpretation of the Constitution vs. judicial interpretation, which, all too often, is tainted by politics), it just isn’t they way the law currently works.

  37. Government, in and of itself, is a violent, coercive, and oppressive entity. Argue the minutiae all you want and point out what’s valid, what’s law, interpretations, etc. It doesn’t matter because no matter what, time brings tyranny, and nothing will stop the government from sliding further and further into a dictatorship, with the willing consent of the brainwashed majority.

    • “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”

      Good luck protecting your rights without a government.

  38. Yet, there are provisions of the US Constitution that would, indeed, grant unto the federal government the authority to tell the various states, “You shall do this!” or “You shall not do this other thing!  Such power is limited, however.”

    Article IV, Section 1: Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

    Should Congress actually sit down one day and say, “Hey, all these States that have joined the Union since 1789… they’ve all adopted State Constitutions that recognize certain civil rights. Also, some of the States that existed when the US federal government was formed by adoption of the US Constitution had also listed certain civil rights that belong to their citizens.”

    Should Congress be so inclined (and I’m not holding my breath), they could utilize the specifically enumerated Power from Article IV, Section 1 and say to the States, “Hey, you all… we’ve read these ‘official acts’ that you call Constitutions, and do you know what? We believe that the ‘equal protection’ clause of the US Constitution and the Fourteenth Amendment allow us to mandate that you honor the full scope of the Second Amendment, as described in your various State Constitutions. Accordingly, we are repealing all federal laws regarding arms, and replacing them with the following: “Effective with the passage of this Act, any law infringing in any way on the Right of any law-abiding citizen of these United States to keep or to bear arms, for any of the purposes listed in any of the various State Constitutions, is herewith prohibited, and each State shall fully recognize the scope of that Right, and any laws now in existence that purport to diminish that right are null and void.”

  39. If the Bill of Rights doesn’t apply to the States…then States can decide on freedom of speech, equal opportunity, discrimination and so on. Since for we are union that doesn’t make sense at all! Unless the Bill Of Rights applies to ALL participants into the Federal Union, like it obviously is! Now… the US Constitution originally had no 2nd amendment, the Prof writes, and at those times it was considered a given..at those times. Thank God it was put into the Constitution and probably with reason, seeing what is happening today!Anyways, I completely disagree with the article. In fact that the professor is creating confusion between States and Federal courts and judges, when they interpret the Constitution. The solution is that…there should be no interpretation at all! Period. the USC is written in simple words for everyone to understand. It means what it says and says what it means, not an iota more or less. Common men do not need a PhD or a master or be a professor to understand it. I agree with the distortion caused by the Supreme Court, which has become a political arm of the Executive branch more than a guardian of the people’s right against “tyranny” and “control greed” from both State and Federal institutions. We have a document which is constantly attacked today and it will not stand for long, unless the people will defend it. Governments, at any level, tend, in the long run, to overstep their boundaries and duties and naturally they want to obtain more control over the people. In conclusion, the 2nd IS my right to keep and bear arms!! It is exactly what the document reads Professor! What can be more clear than those simple words? All those years spent in college and sleeping over mounds of books and still people, like yourself, don’t get it. What a waste of human cerebral matter. No surprise that all these students from prestigious Colleges and Universities that are sitting in Congress and in the White House are fucking everything up. Years and years of spent on the books and they cannot read….

  40. The Right of the People to keep and bear arms shall not be infringed. 2nd Amendment.

    “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”.

    Can anyone tell me the difference between these two statements? To make it simple, People have RIGHTS, citizens have privileges or immunities. These are legal phrases and mean VERY different things. Rights are yours by nature, privileges and immunities are those thing granted by a Government. So you see if the Government decides citizens don’t have the unrestricted privilege to bear arms that can not be infringed upon, then citizens must try convince the sovereign government of the citizens otherwise. The People are the Sovereign of the government and that is why the rights can not be infringed upon.

    • And those Rights, those Natural, unalienable, or God-given if you will, Rights extend to all “U.S. PERSONS.
      .
      That means anyone who comes under the jurisdiction of the United States Government.
      .
      It includes aliens who legally reside in the United States whether or not they are citizens, and it’s Constitution, and frankly, quite possibly illegal aliens.

      .

      • DickG I have a question, what is it that make one of the People subject to the jurisdiction of the United States? FYI, being born or naturalized here is not a valid answer according to the 14th Amendment. There has to be something else with legal force that can be applied. What is that?
        (Please do not misunderstand, I am not looking for an argument but an exchange of ideas.)

        An acquaintance of mine describes jurisdiction far better than I can. http://1215.org/lawnotes/lawnotes/jurisdiction.htm

        • Being within the borders of the United States is an obvious, though perhaps not exhaustive, answer.

          As a side note, curiously enough, though the text of 14th would technically mean that Bill of Rights is only incorporated against the states with respect to citizens, court precedent so far has favored the all-inclusive approach.

        • Greg McAulay :
          .
          “Being within the borders of the United States is an obvious, though perhaps not exhaustive, answer.”
          .
          int19h’s definition above is as close as I can come.
          .

      • DickG and int19h, (The reply link did not sow in the thread.)

        The only way is by voluntarily submitting. The government representatives know they can not gain jurisdiction of the people unless the people do so voluntarily. That is why Government and being a good citizen is taught in school not civics.

        Next, in court if you don’t object you agree. So when you don’t object to their claim of jurisdiction you agreed to it.

        There are VERY few areas what the government has jurisdiction over and they are listed in the Constitution for the United States, Treason, counterfeiting, and piracy ever commit one of those, I don;t recomend it because we the People said they had jurisdiction of that, and mind you ways when in “such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, (Washington D.C) and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings. The only delegated authority they have, including jurisdictional judicial authority is covered under the 17 clauses of Article 1 Section 8. Oh and that “necessary and proper” clause they like to quote, they conveniently leave out the part about the “foregoing powers”. The only areas they can make laws and rules in are the foregoing (the preceding 17 clauses).

        Now here is where the rubber meets the road. How do we the people hold the abusers of this Great System of Government we have accountable? My answer is start to educate people like the folks here in this forum on what a true Grand Jury of the People (Not citizens hand picked by their sovereign) is.

        • This sounds a great deal like “sovereign citizen” and “freeman on the land” nonsense. If that’s what you’re trying to pitch, then you should really be explicit about that.

          Anyway, the notion of jurisdiction is not tied to what you did or didn’t do – it does not change through your actions, but only through your relationship with the governing body (i.e. are you a citizen? are you residing on or passing through the controlled territory?).

          It would be a strange world indeed, where an American citizen could claim lack of jurisdiction from the government on the grounds that, say, he committed merely a murder, and not treason.

        • Sure, but the argument didn’t seem to be limited to federal government to me.

        • Well I assumed that you were talking about Federal crimes since you lumped treason (certainly a Federal Crime) and murder together, and that we were talking about Federal Government powers.
          .
          No matter.
          .

        • Yeah, I was rather addressing the notion that subjecting oneself to someone’s jurisdiction is “voluntary”. It’s not – sure, the states hold jurisdiction over you as their citizen and/or resident in some ways, and the feds hold jurisdiction over you as the citizen/resident of the USA in other ways, but neither of those is voluntary in any sense other than in a sense that you’re free to denounce your citizenship and move outside of your state and the USA.

        • That’s true. Even The Founders recognized that governments are a necessary evil and for limited purposes.
          .
          The beauty of our Constitution is that it was written not only to create a government, BUT TO LIMIT THE POWERS of the government they created.
          .
          As Ben Franklin said: “A republic, madam, if you can keep it!”
          .
          In my opinion, using the U.S. Constitution as a guide, it possible this created the worst form of GOVERNMENT side of complete anarchy! It makes GOVERNING very difficult. My hat’s off to The Founders for having done so!
          .
          We must strive to keep it that way!
          .

        • Government as “necessary evil” is an anarchist meme. Most Founders were not anarchist, and they didn’t deem governments to be good or evil per se, but only insofar as they were used towards good or evil things. A just government that is established by and rules with consent of the governed, and does not infringe on their rights but rather protects them, was unequivocally a good thing for them.

          The “necessary evil” saying is by Thomas Paine. He’s generally considered to be one of the Founding Fathers, but he’s generally considered to be one of the most extreme among them, more so even than Jefferson. He also didn’t participate in the drafting of any legal documents pertaining to governance of the USA.

        • And if you are physically present in the United States and its territories, you come under the jurisdiction of the United States Government when it chooses to apply any of those 17 powers GRANTED it by the Constitution.
          .

  41. This guy is a joke… “The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.” Hey dude you know who said that???
    Thomas Jefferson one of the people who created the constitution. You need to learn how to read the whole thing… Our government is getting increasingly bad and fast. You now are able to hold people with out any judge or jury, look it up. Obama signed it into law.. I hate website that give out bad information!!

    You want the truth to what is going on, you need to wake up!! https://www.facebook.com/pages/People-for-real-change/555877354526455 Here is the truth… have fun with your website that wants you not to have arms… Good luck taking them away too!

    • If I’m not mistaken, Thomas Jefferson was in France while the Constitution was being written and had no active part in its writing other than some correspondence which, given the distance, required several months ’round trip.
      .

  42. This kind of infighting and bitchiness is the death of movements. I believe there’s a term for it; rearranging deck chairs on the Titanic. “No they’re robbing us of our natural born rights!” “No they’re robbing us of God’s will!” “No they’re robbing us of our social contract!” -How about yelling at the thieves instead, or take back whatever it is you’ve lost, instead of yelling at your fellow victims?

    • Rights, such as those enumerated in the 2nd Amendment to the Constitution of the United States of America are:
      .
      (choose one or more):
      …..1. Unalienable
      …..2. Natural
      …..3. God-given
      .
      You cannot give a wrong answer!
      …..Ok. You got it right! 100%!
      .
      Now STFU!
      .

  43. Blah, blah, blah. Amerika’s patriotic nazis and communists could give a fk what anyone thinks of the 2nd amendment or the Bill of Rights.

    Stop selling guns or ammo to the ATF. Stop selling guns or ammo to the D.C. police. This will force govt to obey the law.

  44. The only issue I see with this argument is that the individual states would be unrestricted in there ability to, for example, do away with free press, free speech, or due process ideas. If state constitutions were the only guiding documents for the state can you imagine what a place like Illinois or California would look like?

  45. wow i read all that garbage above and not one single person is intellectually honest… not one person brought up “for a well established militia” in their rants. that’s called lying by omission. and being from a british family, common law only states the right to self defense, as common law was written almost a thousand years before guns, it does not give gun rights per say.common law also holds that trouble makers can be hung for stirring up trouble in a community. we have the greatest military in history by far, which serves the intent of the second amendment, as you are free to join any military branch. hatred of the government shows hatred of your fellow man as WE ARE THE PEOPLE, and PEOPLE ARE THE GOVERNMENT!!! i’m so tired of murderous bigots claiming they have the right to murder people because they are too lazy or ignorant to join in peaceful, intelligent, DEMOCRATIC political actions and processes. rather troglodytes need their guns to shove in peoples faces because they are unable to form a cogent thought to otherwise prove their ideas. also, as a christian, i will obey my lord and turn the other cheek, and if i am made a slave i will not curse my captors of my flesh for my soul is the property of my LORD JESUS!!!

  46. Well, based on this theory slavery must be the choice of the States too. I think that has already been decided by the loss of hundreds of thousands of American Life’s. I will keep my weapon locked and loaded and on my side at all times in a day and age where the public servants are self serving and the biggest criminals in society.

    Federal Law trumps State Law. The Civil war decided the issue. Period, end of discussion. The question was if States had to comply with Federal Law? The issue was Slavery, which the Federal Government abolished and the Southern States refused to comply with. As a note, not a single Democrat voted to abolish Slavery in the Federal Congress of that day. Ironic or status quo?

    • >> The question was if States had to comply with Federal Law? The issue was Slavery, which the Federal Government abolished and the Southern States refused to comply with.

      You should really read up on your history. Slavery was not abolished until well after the beginning of the Civil War, when Lincoln realized that he already has everyone who is willing to fight at his side, and that others would be convinced (and even then, it was not abolished in slave states on the Union side).

      The reason why the Southern states seceded was actually the other way around – because they wanted the free states to nevertheless recognize the institution of slavery, as the constitution and the fugitive slave acts required them to do (recognize slaves as property, return fugitive slaves etc). Free states, meanwhile, engaged in a campaign of obstructionism, refusing to implement those laws, and treating bounty hunters who went after fugitive slaves as criminals. When southern states formed CSA, the first thing they did was to write slavery into the CSA constitution in a very explicit way, and require all confederate states, current and future, to recognize it on their territory – an exact opposite of states’ rights!

      So it was really the free states that were on the “states’ rights” side of things in that dispute, and slave states were the opposite.

      • So the main question remains regardless of the inconsistency’s you point too.

        Federal Law trumps State Law. Now, is that clear enough? We went to war over this issue. The Southern States in the end complied. Or can a State enact slavery? Tell us oh wise one one

        • Federal law trumps state law in a sense that where federal law explicitly limits something that the states could otherwise do, they cannot do that. Since the 13th Amendment explicitly covers the entirety of the USA on all levels, it does of course apply to the states.

          The gist of the argument here is not that state law is superior. It’s that federal law in this particular case – i.e. the Second Amendment – does not have the effect of binding the states due to the way it (and the rest of the Constitution) is worded.

  47. >> not one person brought up “for a well established militia” in their rants.

    It’s “well-regulated”.

    And that’s because it’s not limiting the scope of the right granted by the Second Amendment. Go read the majority decision in Heller, it explains it all in meticulous detail.

    >> being from a british family

    Not to offend, but it does show.

    >> common law only states the right to self defense, as common law was written almost a thousand years before guns, it does not give gun rights per say.

    For starters, common law was not “written”, that’s its whole point!

    And by the same logic, any freedom of speech rights stemming from common law do not pertain to means of communication that appeared after it was “written”. So no freedom of press, no free speech on TV or Internet etc – right?

    How about freedom of movement? Again, by your own logic, it only applies to walking or horseback riding.

    Not that any of it is relevant, since natural rights trump common law.

    >> WE ARE THE PEOPLE, and PEOPLE ARE THE GOVERNMENT!!!

    I don’t know about you, but I’m certainly not the government, and I don’t personally know anyone who is.

    • I suggest that you read the definition of “militia”. Also look up “arms”.

      Let me help you out.

      militia |məˈliSHə|
      noun
      a military force that is raised from the civil population to supplement a regular army in an emergency.
      • a military force that engages in rebel or terrorist activities, typically in opposition to a regular army.
      • all able-bodied civilians eligible by law for military service.

      Ever remember seeing those army T.V. Adds about an army of ONE? A military force can be one person. Also note, “a military force that engages in rebel or terrorist activities, typically in opposition to a regular army.”

      Was the Boston Tea party a terrorist act? It was according to England. Now, when our own Government Officials fail to keep their oaths of office to protect, support and defend the constitution, its time for revolution and rebel.

      Jefferson said in ordre to sustain Freedom and Liberty, we must have a revolution every 20 years. Jefferson knew that political leaders would abuse power and take rights. Only 3% of the population of America took up arms to defeat England and win our independence. How may people in number would 3% of the American population be today? Hint; It would be the largest private armed force the World has ever seen.

      arms |ärmz|
      pl.noun
      1 weapons and ammunition; armaments: they were subjugated by force of arms | [ as modifier ] : arms exports.
      2 distinctive emblems or devices, originally borne on shields in battle and now forming the heraldic insignia of families, corporations, or countries. See also coat of arms.
      PHRASES
      a call to arms a call to prepare for confrontation: a call to arms to defend against a takeover.
      take up arms begin fighting.
      under arms equipped and ready for war or battle: the Empire now had half a million men under arms.
      up in arms (about/over)protesting vigorously about something: teachers are up in arms about new school tests.
      ORIGIN Middle English: from Old French armes, from Latin arms .

      The founding fathers knew that the power vested in our government leaders could be abused. Therefore, the people were given the right to keep and bear arms, and that right shall not be infringed.

      infringe |inˈfrinj|
      verb (infringes, infringing, infringed) [ with obj. ]
      actively break the terms of (a law, agreement, etc.): making an unauthorized copy would infringe copyright.
      • act so as to limit or undermine (something); encroach on: his legal rights were being infringed | [ no obj. ] : I wouldn’t infringe on his privacy.
      DERIVATIVES
      infringer noun
      ORIGIN mid 16th cent.: from Latin infringere, from in- ‘into’ + frangere ‘to break.’

      Now, take your argument up with the Webster’s Dictionary. If you don’t like the Constitutoin and the rights I have as defined therein, leave. If you want to go to war. Keep trying to re-define the Constitution.

      I will not go quietly, I will not shut up, I will stand to defend and protect the rights so many have died to establish protect and defend. I was not afraid to be born, I am not afraid to die. Try and tear down the individual rights of the people of the United States, and you WILL see more than 3% rise up under our rights as outlined in the Constitution of the United States.

      The Peoples right to keep and bear arms is already being infringed upon by the requirement of forcing us to register weapons, get carry permits and other laws that clearly violate the Constitution of the United States of America. If the Liberals want to keep pushing their agenda, they are asking for the revolution Jefferson said would be necessary and is long over due.

      In my opinion, any public official, elected or appointed, fails to keep the oath to protect and defend the Constitution is guilty of treason and should be hung on the Courthouse Lawn. Then our officials would get the picture that an oath of office is NOT to be taken lightly.

      The primary function of Government is the protection of the public. Our founder’s knew that the best protection for the public was a well armed public.

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  50. The Second Amendment was written the way it was written,because the Founders never envisioned the United States having the need for a permanent standing military. But,the fact that is deliberately vague,allows for changes in times,and circumstances. There is nothing in the Second Amendment that says anyone has the right to carry,just,and only because they want to. Gun rights advocates will say,”well it does not say you can”t either.” True,but that proves my point. There is no law that says you can’t et in your car,and willfully run over your neighbors cat. But that dos not mean you can or should.

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  52. Wow, what a revelation…. We all know what opinions are like don’t we?? So, to say the Federal Government is not in control over all States and our Rights sounds like it comes from a person that believes that Slavery should be allowed if a State so chooses…..????

    Wait, that has been decided at the cost of Hundred’s of Thousands of American life’s being given on the issue of whether the State had the right to adopt laws that went against Federal Law. Many States believed so strongly that they had the right to have slavery and the Federal Government had no say in the issue we went to war. Apparently we still have the same problem and question today, but the specific issues are different. Can States adopt laws that legalize Marijuana? The Federal Law makes doing so illegal. But what consequence have the States that have adopted laws suffered?

    So why was the Civil war fought? Was it over slavery or State Rights to adopt laws inconsistent with Federal Law? Looks like we can not learn from our past?

    I for one do not believe that we can not learn from our past. I believe that the issue of how the right to Govern was decided at a cost of hundreds of thousands of American’s giving their life to put this question to an end once and for all. The Union WON! The right to Govern flows from the Federal Government to the State Government to the Local Governments. States do not have the right to adopt laws that violate Federal Law, Local Governments do not have the right to Adopt State Law. Period. And that debate ended at the end of the Civil War.

    Today we have Attorneys that desire to keep the debate alive. Why? The Legislative Branch has grown far to powerful. Separate but equal branches of a Government that has three branches works until one branch takes on more power than was ever intended. Its all about money.

    There is no question any longer. The Federal Government and the Supreme Court of the United States (SCOTUS) rules on all questions of constitutionality, State and Federal. If a State law violates Federal Law, that State law is unconstitutional and in volition of Federal law and therefore moot. That is the way it has been since the end of the Civil war.

    Now no one needs to EVER forget. Not a single Democrat voted to abolish SLAVERY, NOT ONE! Its time to be Americans first. I have the right to keep an bear arms, but I comply with my States Carry Permit laws as to not have to take the issue all the way to the SCOTUS.

    Lets never forget a Russian Dictator said before the United Nations in 1960 that the United States would be overthrown from within without a single shot being fired. If it become illegal to keep and bear arms, I will become an outlaw. If the Government (State or Local) want to take that right away, they will start the next Civil war. Also Jefferson said that in order for Freedom and Liberty to be sustained, we must have a Revolution every 20 years. We are way behind and we need to like up most Attorneys and Judges in front of a firing squad!

    Any arguments?

    • You’re sorely confused over how the government system of the USA worked both before and after the Civil War, and what it was fought over. To get this out of the way, Civil War was fought over secession, and secession was over the desire to not only preserve slavery, but have it be protected on the federal level (which is why CSA codified the right to slaves as property in its Constitution).

      Now, the way USA works – in theory – is that the federal government has the power to regulate and legislate on certain things, in which case said law trumps state law when they are in conflict. But the things to which the feds can do so are explicitly enumerated in the Constitution. All other rights are reserved to the states, and to the citizens of those states. This is what “federal law trumps state law” actually means, and this notion works exactly the same today as it did back when Constitution was first written.

      Before the Civil War, the federal government did not ban slavery. It simply couldn’t do so – it was not one of the powers granted to it by the Constitution. In fact, the Constitution had several provisions that strengthened slavery on federal level, e.g. by placing an obligation on any state, even if free, to return fugitives (which was implemented in law as Fugitive Slave Act). Free states resisted that law by engaging in a nullification campaign – not only refusing to enforce it by state forces, but enacting their own state laws that explicitly prohibited anyone to aid in that, and by arresting fugitive slave hunters and charging them with kidnapping. All those things were actually unconstitutional, but because they had broad popular support in these states, and the federal government was too weak to enforce them, they were nevertheless successful, and that royally pissed off the slave states. The slavers were also worried that, as more free states are admitted into the union, they would eventually be out-balloted to such an extent that a constitutional amendment prohibiting slavery would become possible. So they seceded, the rest of the Union treated that as treason and insurrection, and there was a war over whether secession is legit or not. Union won, thereby establishing that it is not. But that did not tackle the question of slavery.

      That was addressed by the 13th and the 14th Amendments to the Constitution, passed shortly after the war, and doing exactly what the slave states feared – banning slavery, and protecting certain basic rights against encroachment by the states (previously, they were only protected against encroachment by the federal government). It did not expand the supremacy of federal law over state law – the Congress and the executive still cannot legislate arbitrarily, but can only do so within the limits set on them by the constitution. The states also have limits (the 13th and the 14th added quite a few more, but there were limits even before that, like the requirement to have a republican form of government), and also legislate within those limits, but under federal constitution those limits are far broader than those on the federal government – basically, the states can do anything that is not expressedly prohibited to them by the federal constitution, whereas the feds can only do something that is expressedly allowed to them by the federal constitution. Of course, in practice states have their own constitutions that limit their power in interactions between them and their residents, but any such further limits are internal state matters that the feds do not interfere with. And if you take a state government to court over its violation of the state constitution, it will be the state supreme court that will hear it, and you have no higher avenue for appeal.

      So, no. The “right to govern” doesn’t “flow” from the feds to the states, and from the states to the citizens. Quite the opposite – citizens are the ones, by whose will and consent the government is established in the first place:

      “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed

      And those governments are the state governments. So the state governments only have the power to govern that has been delegated to them, collectively, by their citizens. The state governments then, in turn, delegated some of their powers that they originally had as sovereign states, to form the Union of States – the United States of America. So the flow of power is citizens -> states -> federal government. How else can it be in a free country? If the “right to govern” is not granted by the citizens to their government, then where else can it come from? Your rhetoric is dangerously close to that of the European absolute monarchs, who claimed a divine right to rule.

      By the way, with respect to state laws that legalize marijuana – the federal law doesn’t actually make such laws illegal. The reason is that there’s no such state laws – things are legal by default, on both state and federal level, unless there is a law to the contrary. So when the state legalizes pot, it doesn’t write a law that says “pot is legal”. What it does is remove some existing state law that says “pot is illegal”. In practice, they don’t even remove the law, but rather amend it to remove the parts which make private consumption illegal, change the parts that make possession and distribution illegal so that there’s a minimum quantity and various certification requirements that can be followed to avoid the penalties etc. So they do not actually contradict the federal law – they just refuse to strengthen it.

      Of course, whether federal law on marijuana is even constitutional is very dubious. It is claimed to be so under the standing interpretation of Interstate Commerce Clause, but that interpretation has been perverted so extremely that it doesn’t make any semblance to the actual text of the law (there’s no reasonable way in which growing pot in your backyard for personal consumption is “interstate commerce” – yet that is what the feds claim). Even SCOTUS can’t say that black is white – if anyone is allowed to arbitrarily reinterpret and redefine the meaning of the Constitution with no regard whatsoever to the words therein, then you might as well declare the country to be a dictatorship ruled by nine old men and be done with it, since none of your freedoms are worth a damn.

      • I wish to thank you very much. I have never thought of things along this line.

        Thinking upon your theory, would you mind explaining to me exactly how States may adopt laws that require carry permits? I ask this from your statement; “Now, the way USA works – in theory – is that the federal government has the power to regulate and legislate on certain things, in which case said law trumps state law when they are in conflict. But the things to which the feds can do so are explicitly enumerated in the Constitution.”

        Maybe I am just a backwards hillbilly, but how exactly can the States create laws that in fact tax and infringe on my Federal Rights as outlined in the Constitution. Specifically in this case my right to keep and bear arms which shall not be infringed.

        I sincerely would thank you for a reply.

        • I just want to make a couple of observations:
          .
          1. Governments have POWERS. In the case of the U.S. Government 17 of them, and ONLY 17.
          .
          2. People have RIGHTS
          .
          3. Since the government had no RIGHTS in the first place, they have none go give.
          .
          4. The RIGHTS enumerated in The Bill of Rights are considered SOME of the NATURAL (unalienable or God-given if you prefer) RIGHTS possessed by all of mankind INDIVIDUALLY, not collectively. (That is EACH man and EACH woman). If you substitute the wording that refers to The PEOPLE in The Bill of Rights from the individual to the collective, the amendments become meaningless. Hint: Try this with the 1st Amendment.
          .
          5. Several of the States insisted on inclusion of a Bill of Rights as a condition of ratifying the Constitution. Others objected to a Bill of Rights on the basis that a) since there were no POWERS granted to the Government to interfere with individual rights, it was unnecessary, and b) that inclusion of a Bill of Rights would open up the matters to future debate over what those NATURAL Rights encompassed. The “holdouts” won out and here we are! It seems that option b) was correct!
          .
          6. Many of the “heavy” weapons (cannon, armed ships, etc.) used by the Continental Army were donated by private citizens. Rapid reload rifles were in use by the Austrian Army a number of years PRIOR to the writing of the Constitution and the Bill of Rights and THE FOUNDERS were certainly aware of them. (1803 Lewis & Clark expedition carried one). Yes! The People (the you and me of the time) owned (kept) and moved about with (borne) UNREGISTERED CANNONS! OMG!
          .
          7. The Bill of Rights DOES NOT REFER TO THE POWERS OF THE STATES!
          .
          8. The Bill of Rights WAS WRITTEN TO PROTECT THE RIGHTS OF THE PEOPLE FROM THE GOVERNMENT, both Federal and State) ERROSION.
          .
          Please, tell me where I’m wrong.

          .

        • Keep in mind the rights that are outlined in the Constitution – and specifically the Bill of Rights – are historically only limiting what the federal government can do, not what the states can do. This was solidified in case law by SCOTUS decision in Barron v. Baltimore (1833).

          This kinda sorta changed with the 14th amendment, which said that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” – but the problem is that 14th did not say what those privileges and immunities are. At the time of the passing, it was more of a token thing, an expressed desire to prevent abuse of rights by the states, but didn’t immediately translate to any law.

          It was not until 1873 and the Slaughter-House Cases that SCOTUS ruled on this, and concluded that “privileges and immunities” here were those that citizens possessed on federal level, by virtue of being citizens of the Union (and distinct from those they possessed on state level, by virtue of being citizens of some particular state). These rights were outlined as follows: access to seaports and navigable waterways, the right to run for federal office, the protection of the federal government while on the high seas or in the jurisdiction of a foreign country, the right to travel to the seat of government, the right to peaceably assemble and petition the government, the privilege of the writ of habeas corpus, and the right to participate in the government’s administration. This is still the standing judicial interpretation, and the first time that clause was ever invoked to argue against states infringing on the citizens’ rights was in McDonald decision in 2010, and even that was a concurring but minority opinion by Thomas.

          Ironically, it was rather the Due Process clause of the 14th Amendment that laid the groundwork for a slow judicial incorporation of the Bill of Rights against the states. This wouldn’t happen until 1925, when in Gitlow v. New York SCOTUS ruled that under the Due Process clause, the right to free speech is binding on the states. However, the decision only made that particular right applicable, and not every single one in the Bill of Rights – but it did establish the precedent, and since then, as various cases over different rights covered by BoR bubbled up to SCOTUS, most of it has been similarly incorporated in a piecemeal fashion. As of today, only the 5th and the 7th have not been incorporated yet, but I think it is only a matter of time (and finding an appropriate case to get it to SCOTUS level).

          Now, the problem is that the Second Amendment was only incorporated by the McDonald decision in 2010. So until then, there was no constitutional restriction on how the states may regulate the right to keep and bear arms in their legislation – the 2nd only limited what Congress can do. But now, the states are limited in their power to regulate.

          To what extent those limits go is still being settled. Because the wording of the 2nd is not as crystal clear as many of us would like, the exact meaning of “infringe” is debated – it’s clear by now that the state cannot refuse the right of people to own firearms in principle, or the right to carry them. But existing regulatory schemes that involve licenses have been found constitutional so long as they are shall-issue. I don’t think that part is particularly contentious – just like requiring an ID to vote is not an infringement on one’s right to vote so long as ID can be readily obtained by any citizen, so is requiring a license to carry is not an infringement. Personally, I think that charging for said license should be unconstitutional, since it amounts to charging a wealth tax on the practice of the right; we’ve already seen where this goes with poll taxes. But we don’t have any rulings to that effect so far, and I don’t think that current SCOTUS would rule in favor of such a thing. Ultimately, it all boils down to the fact that while US works the way I described in theory, the practice is rather different. Basically, both the states and the feds overstep their authority, and we don’t have any legal recourse to that.

          It should also be noted that in most states, state constitutions codify RKBA also, sometimes in a more extensive fashion than the federal amendment, in fact – e.g. in my state of Washington, RKBA provision is worded such that it explicitly recognizes the right as individual, and self-defense as a valid purpose:

          “SECTION 24 RIGHT TO BEAR ARMS. The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.”

          Because of this, the state is limited in respect to which it can regulate the right, and state constitution has been successfully used in court to smack down state overreach (last case I’m aware of was in 2008, where the judge told the state government that it cannot deny licenses to own & carry firearms to resident aliens, and the state dropped the case and reinstated the issue process – largely thanks to the effort of SAF, and courtesy of which I legally own & carry in Washington State today as a non-citizen).

          For another example, Idaho has a fairly recently (1978) amended RKBA provision which I like because it is very explicit about what the state can regulate (with the implication that it cannot regulate anything else), and prohibits gun registration and arbitrary confiscation. It could be better if it explicitly recognized it as an individual right, though:

          “The people have the right to keep and bear arms, which right shall not be abridged; but this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person nor prevent passage of legislation providing minimum sentences for crimes committed while in possession of a firearm, nor prevent the passage of legislation providing penalties for the possession of firearms by a convicted felon, nor prevent the passage of any legislation punishing the use of a firearm. No law shall impose licensure, registration or special taxation on the ownership or possession of firearms or ammunition. Nor shall any law permit the confiscation of firearms, except those actually used in the commission of a felony.”

          Or North Dakota, which enumerates some more “lawful uses” explicitly:

          “All individuals are by nature equally free and independent and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing and protecting property and reputation; pursuing and obtaining safety and happiness; and to keep and bear arms for the defense of their person, family, property, and the state, and for lawful hunting, recreational, and other lawful purposes, which shall not be infringed.”

          Or Maine, which keeps its short and sweet (it was specifically rewritten to negate the “collective right” interpretation that was previously applied to it before):

          “Every citizen has a right to keep and bear arms and this right shall never be questioned.”

          Unfortunately, many of the states with more restrictive gun laws either don’t have such provisions at all (e.g. California and New Jersey – go figure); or have significantly weakened versions of them, like Illinois:

          Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.”

          Which is why the citizens of these states had to recourse to federal government to protect their natural right.

          Interestingly, many Southern states also have weak RKBA provisions on state level, e.g.:

          Arkansas: “The citizens of this State shall have the right to keep and bear arms for their common defense” – note how this is explicitly a collective right and not individual

          Georgia: “The right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne” – basically, no regulation except where the legislature wants regulation

          I believe these are the legacy of the Jim Crow era, much like may-issue laws, which were supported by the whites to guard against the possibility of blacks obtaining firearms and using them for self-defense – with the tacit understanding that, so long as the legislature, the executive, the courts and the law enforcement were all white-controlled (which was achieved through various voting restrictions), any discretionary regulations would be applied against blacks but not whites. In those Southern states that enacted RKBA provisions after the end of that era, the language is usually much better.

      • Good post.

        One point. The SCOTUS has said, back during the New Deal, that private growing of wheat, solely for personal consumption, can be regulated by Congress under the Commerce Clause because effectively “if everyone did it, it would have a substantial impact on interstate commerce”

        I think that there’s been a more recent case where SCOTUS said something similar about Federal regulations on marijuana grown and consumed solely in one state.

        • Yup – I did mention Commerce Clause in that context, in fact. Wickard decision, in retrospect, was probably one of the most egregious violations of rights and freedoms in this country to date – the number of laws that stomp all over the Constitution that it enabled is enormous. Especially if you remember that drug laws that it enabled are what effectively established a standing internal army in form of DEA and other similar enforcement agencies, and what allows them to conduct no-knock pre-dawn raids, where innocents die routinely, due process is non-existent, and no-one is held responsible.

  53. The Bill of Rights was written to protect the people ONLY from the Federal government. Until various parts of it were incorporated against the states by SCOTUS using the 14th Amendment it didn’t apply to the states.

  54. All the rights in the Bill of Rights pertain to the individual, except the second one? Really? The purpose of the 2nd Amendment is to prevent government from becoming tyrannical like the government of England became to the colonists. When there is strict gun control you have a higher crime/murder rate because it upsets the balance between criminals, government and citizens use of force. You cannot maintain a state of freedom when only the criminals and the government have all the guns.

  55. The answer lies in the Supremacy Clause of the Federal Constitution. The Federal Constitution is the same type of document as a set of By-Laws an organization uses to govern the organizations action. Think of the Federal Constitution as our Nations By-Law. The Bill of Rights were the first “Amendments to the Federal Constitution (Our Nations By-Law). The Supremacy clause makes it clear that the Federal Constitution trumps state laws where there is a dispute. It Reads: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”
    .
    Contrary laws do not trump the Federal Constitution. In becoming a State with in the United States: like a person joining a club; the states accepted the Federal Constitution as The By-Law of the Nation (Club they Joined). The members are bound by the By-Law. Having to wait to have a permit issued or paying for the permit reduces the right to a privilege. The RKBA has not been Constitutionally redefined to a privilege. Permit laws are an INFRINGEMENT, even if temporary. The 2nd Amendment and Federal Constitution do not allow for temporary infringement. You are born with the RKBA! Some would have you waiting until the age of majority and then waiting in line to get the god state’s permission. The state does not trump God or Natural Rights received at birth. The Federal Constitution restricts Federal and State governments from infringing with GOD GIVEN RIGHTS. ” WHAT PART OF SHALL NOT BE INFRINGED” can’t some understand. By the way: Law enforcement personnel take an oath to protect and defend the Constitution against all enemies foreign and domestic also. How do I know? I was one! I took it! Those who enforce unconstitutional laws are DOMESTIC ENEMIES OF THE CONSTITUTION!

  56. Amendment under Bush was never ratified. It takes a President, USSC, Congress then a vote from each State and the States did not vote. Only a few amendments have ever been ratified so it continues that only a well regulated militia has rights to bear arms. Sorry for tossing facts in here but someone from media had to do it.

    We talk about these things some not on the news site but at least the wordpress part of it.

  57. You guys don’t get it. The Constitution died with the Lincoln Administration; THAT was the time for the People to take up arms against the Federal Government.
    Since then, it’s been the judge of its own powers.

  58. The Second Amendment does not mention guns, so Congress has the power and responsibility for training and organizing the militia (all able bodied citizens)

  59. The Supremacy clause was not proposed for ratification under Bush. It is part of the original Constitution. Yes the amendments have been ratified. Go study your history.

    If the Constitution died under Lincoln : show mw the amendment process and Constitutional convention that was held and ratified by the states to dispose of the original Constitution. There was none and to enforce anything contrary is a crime. So what has the Supreme Court been ruling on all of this time? How could they rule that the government has violated peoples rights?

    As for the media being a source of TRUTH: you are kidding me. The mainstream media is a joke hence the rise of alternative media that has been responsible for waking up the populace.

    As for “ARMS” not being guns. What do you think the militia used to fight with. They did not extend their bodily arms at the British and the British did not fall down dead and wounded from a thought. Read your history, the founders made it very clear what arms were. Have you ever heard of a history book or dictionary?

    The Militia is comprised of individual citizens keeping and bearing arms(GUNS) hence the individual right and by the way in the case of the Fourth Amendment the Supreme Court has defined the phrase “of the people” to mean the individual person. So the same phrase in the Second Amendment now means the same “individual person”.

    You Charlatans need to find someone that does not know better to believe your revisionist, communist, psychobabble!

    • Please pardon the few typo’s. One more thought. Regarding the militia; the Second Amendment addresses the State not the Federal Government. The Federal Government is not responsible for arming and training (regulating the Militia) and the National Guard is not the Militia mentioned in the 2nd Amendment since the National Guard is now Federally funded and controlled.

  60. Interesting and provocative theory, Robert. But as the physicist Wolfgang Pauli once remarked regarding a poorly thought out argument made by a colleague: It’s not even wrong.

  61. GOD, you are insane, the 2nd Amendment IS my gun permit. SHALL NOT BE INFRINGED!! quite clear and plain. Every single gun law prohibiting the ownership of guns is ILLEGAL. Back in the 1800s, one of the first things given back to you after leaving prison was your GUN! This means that you have the right to keep and bear arms no matter what happened in your past.

    The right to keep and bears arms was put there to protect US from the “government” not the other way around.

    Also, rights are always there, you can never lose them. If you can have your RIGHTS removed, then it becomes the Bill Of Privileges. Do you really want that?

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