Topic: Gun Control
The 2nd Amendment: No Guarantor of Liberty The 2nd Amendment doesn't really protect your right to keep and bear armsby Steven McDuffie
(libertarian)
Monday, April 20, 2009
Sorry fellow gun nuts, the 2nd Amendment doesn’t really protect the right to keep and bear arms. If you take a giant step back, and look at the Constitution as saying what the federal government can do, and the Bill of Rights as saying what the federal government cannot do, you will see that there is no provision for the Federal government preventing the state or local governments from impinging on or totally abrogating the right to keep and bear arms. It says "Congress shall make no law…", it doesn’t say the State or local legislatures shall make no law. The evidence for this is voluminous. Here are but two quick examples:
Despite the 1st Amendment’s establishment clause, many states at the time of the ratification of the Bill of Rights had tax-payer supported, official state religions and no one at the time thought they were in violation of the 1st Amendment. Massachusetts had an official, tax-payer subsidized state religion until 1833.
Thomas Jefferson said "While we deny that Congress have a right to control the freedom of the press, we have ever asserted the right of the States, and their exclusive right, to do so."
The overarching point of all of this is that neither the Constitution, nor the Bill of Rights—even taking a strict-constructionist view—are guarantors of liberty. Patrick Henry was suspicious of the Constitutional Convention right from the start, telling James Madison that he "smelled a rat" and in his speeches to the Virgina Ratifying Convention, he nearly convinced that state to not ratify. However, Patrick Henry's fear was that the Constitution would be interpreted based on a loose construction by future generations. As I have shown here, neither a strict nor a loose construction of the Constitution should be embraced by lovers of liberty. To my mind, it's high time that self-described libertarians stop worshipping this document.
Steven McDuffie can be contacted by emailing him at sdmcduffie {at} hotmail {dot} com.
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You are quite right; the Constitution and BOR only applies to the federal government.
I think the founders knew that if any state made a law as foolish as banning weapons of protection from the citizen, that there would have been a mass Emigration to other states with more intelligent laws. This would have quickly eroded the financial and political power of the foolish state with the gun-law.
This same logic applies today if citizens have the gumption to let their feet do the talking...
"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."
Where Congress is the legislative branch of the federal government.
The 2nd amendment makes no such qualification. It says:
"A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."
That means no one can infringe on it. Also note that article VI says:
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
It is only the first amendment which is specifically applied to the congress only.
But I would also argue that the 14th amendment applied all of the constitution to the states.
Posted By: Steven McDuffie
Date: 2009-04-20 19:23:31
These are the remarks of Prof. Kevin RC Gutzman, author of The Politically Incorrect Guide to the US Constitution and co-author of Who Killed the Constitution, upon reading this article:
"The purpose of the US Constitution was to constitute the central government. Nationalists at Philadelphia in summer 1787 wanted to empower it to veto state laws, but they lost. James Madison, chief proponent of that idea, tried to get Congress to send the states an amendment empowering federal courts to oversee state behavior in regard to certain basic rights, but he lost again. In short, the guarantor of your liberties against state governments was supposed to be your state constitutional system. Quite right."
The 2nd Amendment applies as much to state governments as to the federal government. Why? Because the U.S. Constitution says that it is the "supreme law of the land", and thus even state governments are subject to it. No state government can pass a law that violates the right to bear arms as defined in the 2nd Amendment.
Posted By: Laura Boatright
Date: 2009-04-21 01:34:19
I agree with Ken...with the added mention that the citizens of the States were very dubious of a centralized power (for the most part). And it was included as a means of protecting State sovereignty against a despot FedGov. ref: DOI.
A former constitutional law professor, author of three books on the original intent of the Constitution, and current history professor, Dr. Kevin Gutzman, thinks my article is valid. That's good enough for me.
There is nothing in the Constitution or the Bill of Rights that would indicate the Federal Constitution supercedes state laws. Indeed, as Gutzman points out, several founders (Hamilton, Madison, Jay) wanted a federal Constitution that would impose limitations on state law, and they failed at every attempt.
I thought that today the Constitution and its 2nd amendment was worth sh.t. No federal or state courts, nor legislators abide by it anymore. Although some freedoms were re-established, most of our freedoms have been taken away year after year for the last 100 years. Therefore unfortunately, the Costitution today is just meaningless words written in an old parchement for the history books.
I am telling it how it is, so don't shoot the messenger.
The folks on the side of the second amendment applying to the states as well as the feds have presented the lauguage of the constitution as their rationale.
1) Unlike the first amendment the second amendment does not limit its intent to congress. Therefore no entity may violate the 2nd amendment.
2) Article VI specifically says the constitution is the supreme law of the land and no state law or state constitution may supercede it.
The folks on the opposite side of this issue have not cited any language in the constitution to support their claim. The reference to Dr. Kevin Gutzman does not include any references to specific sections of the constitution or papers written by any of the founders. Show us something the founders said that supports your position.
Regarding the case of DC v. Heller, Dr. Gutzman stated..."I do not believe that the District of Columbia is governed by the Second Amendment." [link edited for length]
It seems the Supreme Court did not agree with him.
The clauses in the Constitution are clearly numbered. If you examine at the Constitution in order, it is clear that the body of the document defines the powers of the federal government, then the first 8 amendments, from the Bill of Rights, also numbered, define the rights of individuals, the 9th defines that the people retain other rights not "enumerated" by the Constitution. Finally, the 10th states, "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."
Look at the Constitution chronologically and it makes sense.
The Constitution of the United States is a dead letter. It passed away on the plains and fields of the South as the War to Prevent Southern Independence was lost- but not just for the south- but for us all- because at no point in the future would the right to secede be considered a viable check against Federal Power as it was from the beginning. Slavery could have been solved peacably, as it had been in every other country of the world, but Lincoln used the blood of patriots on both sides of the war, and his emancipation proclamation had nothing to do with it- it was the amendment, as ratified by the states that freed the slaves.
But we have come a long way baby, when amendments which are to be used sparingly, instead of weightier matters of slavery or women's sufferage, end up as silly as the last one to date:
Amendment XXVII
No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
--
After all it is just so important to keep giving these f*ckers raises all the time- even when they approve bailouts, tarp, etc. Bend over and grab your ankles- its Constitutional!
"This week, the U.S. Court of Appeals for the Ninth Circuit marked a milestone in Second Amendment history by ruling that the Second Amendment applies to the states through the due process clause of the Fourteenth Amendment to the U.S. Constitution. NRA has been involved in, and supportive of, this case for the past ten years and has filed several amicus briefs in the case."
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