2nd Amendment

To understand how the Supreme Court came to strike down a Chicago ordinance banning handguns, and declare for the first time that American’s have a right to keep (if not bear) arms, it helps to understand a little-known bit of American legal history.

Few Americans know that the venerable Bill of Rights was NOT originally applicable to states – it was merely a check on the Federal Government. Chief Justice John Marshall said so himself in an 1833 decision, and almost 100 yrs passed before the issue was revisited. Virginia, New Hampshire and New York could throw you in the clink, take your property, beat a confession out of you, and never even tell you what you were charged with – and the US Constitution was totally cool with that. After all, the Constitution constitutes a Federal Government, laying out what it can and cannot do – it isnt about the states.

The constitution, of course, has a few “no state shall” clauses – making treaties and coining money is a no-no – but searches without probable cause and seizures without warrants? Yes, they can. Or could – for almost 150 years, until Bill of Rights was gradually applied to constrain state action too.

Technically, the Bill of Rights still doesnt really apply against state governments. Rather, states are constrained by the due process clause of the 14th amendment, which reads in pertinent part, “No State shall… deprive any person of life, liberty, or property, without due process of law.” If you’re wondering what the f that really means – the Supremes shared your wonderment, and avoided answering the question for a half-century. But then they got busy….

In 1925, the Supremes took up the curious case of Benjamin Gitlow – he published a paper that called for the overthrow of the government, and New York State locked him up for it, to the considerable detriment of Gitlow’s freedoms of speech and the press. Reasoning that these freedoms are “among the fundamental personal rights and ‘liberties'”, the Supreme Court held that the 14th amendment’s “due process” clause protected both from impingement by the states. Over the next 40 years, using this same logic, the Supreme Court determined that the due process clause of the 14th amendment effectively INCORPORATED (almost) the entire Bill of Rights, to operate as a check on state governments.

After the 1960s, another 40 years passed, and it seemed the process known as “selective incorporation” was complete. Most of the Bill of Rights made it in, including almost all of the rights of the accused – but there was one significant omission: the 2nd amendment.

At present, four justices of the Supreme Court (Robers, Allito, Thomas, Scalia) explicitly subscribe to the notion of “Originalism” as their primary means of interpretating the US Constitution. It’s their belief that the meaning of the Constitution should not evolve over time, but should be fixed by the contemporary intent and understanding of its framers and ratifiers. One of the seminal texts of Originalism (Government by the Judiciary by Raoul Berger) specifically attacks the Supreme’s use of the due process clause of the 14th am to apply the bill of rights against the states. Given that Originalists now have 4 votes on the Court, one would think it highly unlikely that the doctrine of selective incorporation would be expanded.

The 2nd am. seems especially ill-suited to be applied “against” states, given that it ostensibly serves states:

“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.”

The framers of the Const. could just as easily have omitted the first two clauses, and simply written, “The right of the people to keep and bear Arms, shall not be infringed.” Instead, they related the individual right of “the people” to keep and bear arms to the State’s need for a militia. Thus, a fair description of the 2nd amendment’s original purpose, back in the late 18th century, might have been to prevent the newly created federal government from disarming a populace – thus guaranteeing the states’ ability to form militias to defend themselves from that same federal government, if necessary. If states themselves decided they didnt want or need a militia, they seemingly could have disarmed their citizenry.

It helps to understand what a militia is – as distinct from an army. Militias can be no more than an informal gathering of (armed) people of the community – while an army is formally raised by the government. In the past, it was common for a country to have NO army during peacetime. Armies would be raised in anticipation of war, and disbanded at the end of a war – the militia would keep the peace in the interim. Armies, furthermore, had a negative connotation: they were often foreigners, and people of otherwise dubious purpose and origin. Militias, by comparison, were trusted because they were commonly one’s neighbors.

The Civil War forever changed the balance of power between state and federal governments. This should be intuitive: the Civil War ended in the south’s legal, political and military reconquest. It is therefore quite sensible to read the 14th amendment – ratified in 1868 – as stripping the states of some of their sovereignty – specifically curtailing their power to deny their residents “due process”. One can further understand the Supreme Court’s decision to use the estimable Bill of Rights as the fount for determining what exactly states could no longer do. In the aftermath of the Civil War, it is not a stretch to understand the 14th amendment as requiring states to respect many basic human rights. But the same logic simply cannot be applied to the 2nd Am. The US had only just (barely) defeated the Confederacy 3 years earlier – it is inconceivable that the conquering states would shortly thereafter pass a Constitutional amendment that prevented states from disarming their populace!

But that’s exactly what 4 so-called originalists on the S.Ct held…










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