photo credit: fauxto_digit
There are exceptions, qualifications, and confusions, but in general, we all probably know that the 2nd Amendment to the US Constitution prohibits the government from infringing on the right to bear arms.
For most of American history, that prohibition has been against the federal government. States and localities could restrict however they want. The founders considered states to be The People, and if the people wanted to restrict their own rights, then go for it.
For example, the Constitution prohibited Washington from eliminating freedom of the press, but if a STATE wanted to do so, that’s their business.
But over the years, the Supreme Court has pretty much decided that MOST of the bill of rights should be extended to states (or “incorporated”). The second amendment, until now, wasn’t one of those.
But now it is! According to the latest ruling, which I haven’t read, they’ve decided that throughout the US, no one will be able to make a law prohibiting guns.
The deep irony is that people who fight for “States’ Rights” against the federal government often find themselves saying that states shouldn’t be allowed to prohibit gun ownership.
Oh, they want the federal government out of the states’ business. Except when the federal government lands on the same side they do on an issue. In THAT case, they want the federal government right in there!
And of course, people who usually fight to get the federal government involved in states’ decisions would rather they stayed out on this point.
The legal basis
Funnily enough, the justices don’t agree on why the amendment should be incorporated. Thomas has written his own opinion.
I don’t get it. I don’t think this ruling follows the intent of the founders, the letter of the Constitution, or a need to benefit society. I don’t think that bearing arms is a fundamental part of being American (a possible cause for incorporation).
I’m not a gun control activist. I’ve lived in highly weaponized places (like Israel) without worrying too much that honest citizens are going to start shooting the place up. I like going to a shooting range, and I have owned a gun (years ago).
I just don’t understand this ruling from a historical or legal perspective. Now, to be clear, I’m not a historian or a lawyer, and I haven’t even read the whole ruling! So take all this as it’s given: a rant from an uninformed blogger.
Anyway, the new ruling apparently doesn’t disallow restrictions on guns. It seems to just prohibit outright outlawing of guns. Which had only happened in a couple of places, anyway, so whatever.
The link below goes to a PDF containing the majority opinion, Thomas’s opinion (partly concurring and concurring with the ruling), and Stevens’s and Breyer’s dissenting opinions.
For Thomas’s opinion, search for: Opinion of THOMAS, J.
For Stevens’s dissent, search for: JUSTICE STEVENS, dissenting.
For Breyer’s dissent, search for: JUSTICE BREYER, with whom JUSTICE GINSBURG and JUSTICE SOTOMAYOR join, dissenting.
The most interesting thing about this opinion is Justice Thomas concurrent opinion, because he follows a different line of reasoning than the “incorporation” reasoning you outlined above. Instead of “incorporating” the amendment under the Due Process Clause, he uses the Privileges or Immunities Clause. None of the other Justices seemed to disagree with that line of reasoning (though obviously some disagreed with the conclusion).
Most “Originalists” really hate incorporating things under Due Process, because, as you state, it’s stretching the meaning in order to get the desired outcome.
Oh yeah – States don’t have rights, people do. States have powers. States do not equal people, either, or else the 10th amendment wouldn’t specifically recognize both.
I may be able to clear up a little bit of it. Many people who support “States Rights” are really in favor of keeping power as local as possible. Things that must be done by government should be done by as local a government as is practical, but things that should *not* be done by government need the power of higher government to prevent abuse. The Feds preventing States from having laws that violate the rights of the individual is consistent with this position. The main purpose of the Federal government is keeping the State and local governments from violating the rights of the individuals.
This is precaffienated, and a bit rushed, so I hope it makes sense. For a change, I’m not trying to be funny, so that may help.
Thomas says that incorporating the right using Privileges is a better way than doing so using Due Process. But either way, it’s still incorporating.
(Interestingly, he also agrees with the rest of the court that Due Process does the trick.)
I left out the implications of using Privileges, because I didn’t want to get tied down into it (meaning I didn’t want to learn about it), but if his reasoning wins the day, then there are other rights that could be incorporated as well.
Rights vs. powers
I won’t quibble about the common shorthand of saying rights vs. powers, but I will say that some of the finest legal minds in the country use that shorthand, so I’m in good company.
States vs. People
I think the 10th amendment just wants to be as clear as possible, but that doesn’t mean that the term didn’t often mean THE PEOPLE.
I found a quote from Madison, but in my short search online couldn’t find a place to copy and paste from. So I’m typing it from my book and will probably introduce typos!
From Madison’s Report on the Alien and Sedition Act (1800):
It is indeed true that the term “States” … sometimes means the separate sections of territory occupied by the political societies within each; sometimes the particular governments, established by those societies; sometimes those societies as organized into those particular governments; and lastly, it means the people composing those political societies, in their highest sovereign capacity.
I can’t know what every single supporter of states’ rights wants. But I think in general it’s about allowing the states to have every power that isn’t specifically stated in the Constitution as being Federal. (As stated in the 10th Amendment.)
For example, that’s what George Wallace meant when he said that states’ rights equals allowing states to segregate by race.
The Constitution (before the latest ruling) was never interpreted as giving the federal government the right to stop states from outlawing guns.
Bruce, you start by saying that government should be as local as possible, but then I get a little confused.
In the end, it almost sounds as though you’re saying that supporters of States’ rights are really just hard-core libertarians. Whichever government (local or federal) lets them have more rights is best.
That’s not really Constitutionally sound. Certain things are reserved for the federal govt. and others aren’t.
If the federal government passes a law saying that states cannot outlaw helmets, then that violates states’ rights, even though it guarantees power to the individual.
I’m down with all that, Rob, but my own shorthand of saying “states have powers, people have rights” is a way to express the longhand notion that “state’s rights” is a loaded phrase that I don’t really want to have anything to do with. State’s don’t have rights, people do, which reminds me that I agree with Bruce that I want to have power devolved to the local level as much as possible, but I want the Constitution to be in place to protect the inalienable rights that have been recognized therein. “State’s rights”, much like the “Stars and Bars”, would be an acceptable enough thing if it hadn’t been picked up by some unsavory types and taken as their own. It’s too late to go defending those symbols and phrases, so best to make the argument without the shorthand and let the phrase go into the dustbin.
Kevin: I see what you’re saying.
That’s what I get for posting before coffee, but I’m doing it again. Your example is actually a good one for me. I’m opposed to all those nanny laws, such as mandatory seat belts and helmets, when applied to adults. However, I agree that it’s within the legitimate powers of the State or municipality to impose them, and up to the citizenry to convince their representatives to not pass them. If the Federal government passed a law that forbade such laws, I’d consider it unconstitutional, even if they used their favorite tortured interpretations of interstate commerce to back it up. On the other hand, when the State or local government passes a law that denies the people a right specified in the Constitution, such as free speech or the right to bear arms, it’s the responsibility of the Federal government to throw out that law. Hmm…where exactly does it say that the State can’t establish a religion, take over the Press, outlaw weapons, etc.? I was pretty sure they were restricted from this, but a literal reading of the amendments seems to leave them free to do any of this. Maybe I should refrain from posting early, or when I don’t have time to check things through more thoroughly.
Right. Until the Supreme Court weighed in, states were free to ignore the parts of the Bill of Rights that didn’t specifically restrict them.
But the Supreme Court has since ruled that the states must honor most of those rights. It wasn’t until just now that the second amendment was one of those that the states had to follow.
The more I read it, the stranger that seems. The 1st specifically mentions Congress, making it sound a bit contorted to claim that it applies to States. The 2nd, on the other hand, says “shall not be infringed” without specifying *who* shall not infringe the right. To me, that makes the more obvious interpretation that Maryland is free to make Rastafarianism the State religion (and outlaw others), but that it cannot prevent its citizens from owning Bazookas. I’m considering petitioning the Great State of Colorado to establish the Church of the Subgenius.
The document was really about the federal government. When they meant the states, they were explicit.
Then the 14th amendment was passed. The Supreme Court subsequently decided that part of the 14th amendment (the first part) meant that at least some of the Bill of Rights should apply to the states.
The first part of the 14th amendment includes the following:
…. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
*That* was it! Thank you. I thought I remembered something like that from a lot earlier in the doc. Now if I’d just spent the time to read through the recent argument, it would have been obvious, since they were referencing the “due process” clause here. It’s the 14th that some politicians run into with their plans to deny citizenship to “anchor babies”, as part of the fight against illegal aliens. IICR, this amendment is also why a (e.g. same-sex) marriage legitimized by one state must be recognized by the others. I’ve also taken this to outlaw the Draft (which deprives a citizen of liberty, and sometimes of life), but it specifies the States so I guess that doesn’t work.