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By Scott Landreth

“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 [email protected].


Republished with permission from


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  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.


  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.

        • I will explain the meaning of infringe so it is clearly understood by the sheeple out there . in·fringe
          actively break the terms of (a law, agreement, etc.).
          “making an unauthorized copy would infringe copyright”
          synonyms: contravene, violate, transgress, break, breach; More
          act so as to limit or undermine (something); encroach on.
          “his legal rights were being infringed”
          synonyms: restrict, limit, curb, check, encroach on; More.
          All gun laws are a form of infringement. There’s no doubt about that. Any law that violates the constitution and bill of rights is null and void. A right isn’t a privilege.

        • Question; what other rights must a citizen petition it’s government for permission to exercise?
          NONE… Any infringement Federal or State level is unconstitutional.and illegal. It is written in plain English no court has the Authority to pervert or change what is clearly written.

      • 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 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.


    • 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.

      • 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)

      • Firearms and the Fourteenth Amendment

        The 14th Ammendment, “equal protection” excerpt reads: “No state shall… deny to any person within its jurisdiction the equal protection of the laws.” . Today, “equal protection” is now interpreted as everyone is entitled to the same outcome, the law be damned.

        “A society that puts equality — in the sense of equality of outcome — ahead of freedom will end up with neither equality nor freedom. The use of force to achieve equality will destroy freedom, and the force introduced for good purposes, will end up in the hands of people who use it to promote their own interests.” (Milton Friedman)

    • 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:

    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.


    • 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.

        • Why not simply an amendment making it legal to hunt federal judges and elected officials?

          Wouldn’t the threat of death encourage them to make everyone happy?

  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.


    • 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. 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!!!!!!!!!!!!!!!!!!

  25. 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.

  26. 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!

  27. 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.