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 firstname.lastname@example.org.