Posted on 04/21/2009 5:10:29 AM PDT by Delacon
Last June, the Supreme Court ruled in District of Columbia v. Heller that the Second Amendment protects an individual’s right to keep and bear arms, at least in the home for self-defense. Here’s our own Bob Levy, who masterminded the Heller litigation, talking about that decision:
While the Court’s ruling was a watershed in constitutional interpretation, it technically applied only to D.C., striking down the District’s draconian gun ban but not having a direct effect in the rest of the country.
Well, today the Ninth Circuit (the federal appellate court covering most Western states) ruled that the Second Amendment restricts the power of state and local governments to interfere with individual right to have guns for personal use. That is, the Fourteenth Amendment “incorporates” the Second Amendment against the states, as the Supreme Court has found it to do for most of the Bill of Rights. I rarely get a chance to say this, but the Ninth Circuit gets it exactly right.
Here’s the key part of Judge Diarmuid O’Scannlain’s opinion:
We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.” Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the “true palladium of liberty.” Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited. We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.
In short, residents of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington now join D.C. residents in having their Second Amendment rights protected. And courts covering other parts of the country — most immediately the Seventh Circuit, based in Chicago — will have their chance to make the same interpretation in due course.
Just as interesting — and potentially equally significant — is the footnote Judge O’Scannlain drops at the end of the above text in response to arguments that the right to keep and bear arms, regardless of its provenance as a fundamental natural right, is now controversial:
But we do not measure the protection the Constitution affords a right by the values of our own times. If contemporary desuetude sufficed to read rights out of the Constitution, then there would be little benefit to a written statement of them. Some may disagree with the decision of the Founders to enshrine a given right in the Constitution. If so, then the people can amend the document. But such amendments are not for the courts to ordain.
Quite right.
But we do not measure the protection the Constitution affords a right by the values of our own times. If contemporary desuetude sufficed to read rights out of or entitlements into the Constitution, then there would be little benefit to a written statement of them. Some may disagree with the decision of the Founders to enshrine a given right in the Constitution. If so, then the people can amend the document. But such amendments are not for the courts to ordain.
Such as the "right" to healthcare, the "right" to a minimum income, etc., etc.
I consider few of the left's arguments progress - certainly not gay "marriage". It seems more regression into a dissolution of civilization to me. I refuse to use the word "progressive" to describe the left.
You've got me beat there. I don't have the refs you have because I didn't pick this fight over federalism v states rights(that was between you and Wonder Warthog). In fact I apologize for stepping in the middle. Listen, I've had this battle on the fly with states rights advocates before. I don't expect you to take my word for it but I have in the past found legal jurisprudence that backs up that the transition from perpetual union to more perfect union supports that states gave up their right to cede from the union. But I'd like to add that the argument that the framers didnt expect, want, or intend that the constitution wasn't a permanent contract defies all logic. They were for the second time trying to form a nation. Countries, and nations are never known for their impermanent goals. I don't think the framers where trying to buck that. Quite the opposite. They were trying to form a perfect perpetual union so much that they threw in ever possible caveat to resolve our differences EXCECT the caveat that the states could just flat out leave. The only thing close to it was calling a constitutional convention whereby I suppose states could be allowed to leave.
Not incorrect. The Constitution would not have been ratified unless it was clear that the BoR would be adopted.
http://www.constitution.org/wr/rawle_10.htm
“Of the amendments already adopted, (for which see the appendix,) the eight first in order fall within the class of restrictions on the legislative power, some of which would have been implied, some are original, and all are highly valuable. Some are also to be considered as restrictions on the judicial power.”
“The constitutions of some of the states contain bills of rights; others do not. A declaration of rights, therefore, properly finds a place in the general Constitution, where it equalizes all and binds all.”
“Each state is obliged, while it remains a member of the Union, to preserve the republican form of government in all its strength and purity. The people of each state, by the amended constitution, pledge themselves to each other for the sacred preservation of certain detailed principles, without which the republican form would be impure and weak.”
............................................
“The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed.”
“The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.”
See post 85.
That's correct. They ratified on the basis of a deal they reached with Madison, who promised to bring it up in the first Congress, which he did. It was not a compact, and it wasn't passed before the ratification. It was debated and written after ratification, in the first congress.
This is Virginia we're talking about. They were the 9th to ratify, IIRC. The deal was struck between Madison and Mason. I don't recall what Henry thought of the whole thing, or Randolph.
Douglass v. Stephens, 1821
http://press-pubs.uchicago.edu/founders/documents/a4_2_1s17.html
I think you're probably correct, but it's not reassuring given the apparent propensity of the current administration to view the constitution as a flexible and even still an undesirable constraint instead of a framework to work within.
I agree entirely with you that few of the left's views are actually progress. However, unlike your decision, I choose to use their now preferred identification as progressives. The reason for this is they're shifting names because their views have discredited the title "liberal"...so I believe we should not allow them to slide away from their own negative connotations by now declaring themselves progressives and not liberals. If they wish to be called progressives then I will continue to apply the negative connotations to their new title because they have changed nothing but a name...the views are still the same. Eventually everyone will see progressive as failed a view as liberal and they will attempt to flee to another identification, but till that happens I wish to stick them with the consequences of their views.
I don’t think they even view as a restraint at all. Did you hear Geithner getting asked 4 or 5 times about where he gets the Constitutional authority to do what he’s doing? He obviously believes anything Congress does is Constitutional.
Obama doesn’t care about the Constitution, but then again I would make the case that very few of the presidents in the last 100 (or more) years have cared about the Constitution.
It would seem to me that since secession is not denied to the states, it is reserved through the 10th Amendment. It doesn’t seem like there’s much to argue about there.
And so many people here said the Heller Decision was a limited victory. That declaration of an “individual right” to RKBA was pivotal.
Sadly I think you’re right. When I carry a sign I think it’s going to say: “Reinstate the Constitution”.
I hear this a lot and it is false. The US Constitution was most certainly intended to cover the states.
You have a right to due process in gederal court, but also a right to due process in state courts.
Slavery is abolished not just under federal law, but state laws as well.
No law establishing a religion on you is allowed, not by a federal legislature and not by state legislatures.
Military personnel cannot be housed in your home, be they federal troops or a state’s National Guardsman.
The US constitution most certainly did limit the power of both federal and state and local governments to impose these things. That is obvious on the face of it and I’m constantly baffled why people don’t believe this.
In fact, if you are correct in that the constitution only covers the feds and not the states, why can’t the State of Utah ban abortions? You are saying that the 1st Amendment has no hold over the states, only the federal government. If that is the case, then why do states continue to impose bans on abortion, that are always founded to be unconstitutional based on the 1st amendment (Not that I believe that false ruling that abortion is protected by the 1st, just proving to you how the Federal Constitution does indeed bind the states under its provisions.)
Here is another crystal clear example. Since the 14th amendment requires ALL individuals in ALL states to pay federal income taxes, if the US constitution is not binding over the states, why can’t states simply abolish that requirement. They can’t. Not from a legal viewpoing. (Again, not saying that federal taxes are legal under the constitution, but saying that courts having found them legal, the INDIVIDUALS of ALL STATES are required to pay them. Further proof that the US Constitution covers the states).
Yours is the most perfect, simple proof that the US Constitution covered individual liberties by people in all the states from government at every level.
If the 14th was needed, then the 10th is meaningless. That the 10th was included to declare that the States and their individual peoople had power over everything else not explicitly states in the Constitution, proves that the 14th is just a power-grab by the Federal government to usurp state sovereignty.
Excellent proof. I’m never forgetting that one! If you belive incorporation comes ONLY from the 14t amendment, then what possible meaning or use can the 10th amendment originally have. It would be a redundancy, and the framers were anything but imprecise or sloppy in that founding document.
Just a perfect perfect proof. Thank you!
That's right. The Constitution grants powers to the federal government, and at the same time limits them. While state powers aren't specifically granted or limited by name, I don't think for a minute the founders intended any state government have the power to infringe upon a person's natural rights. To the extent the 14th. codifies that, I have no problem with it.
EXACTLY!!
OK, I need you to illustrate how the 1st amendment only applies to the Federal government.
Am I to believe that the States can make laws requiring you to be a Muslim or a Buddhist? Am I to believe that the Stats can ban newspapers and radio stations? Am I to believe the city you live in can restrict your free speech?
Hogwash. I don’t buy it.
That states can enslave black people again if they wanted to? If you honestly believe that the US constitution has some provisions that do not apply to the states as such, then why didn’t the southern states tell the USA, “you have no power to free the slaves in our states since the 13th amendment of your constitution does not apply to us”
Sorry, but that is pure hogwash. All of the amendments apply to all state and local governments. The only provisions that don’t apply to the states are the ones that specifically cover only the federal government, such as the three branches of government and the ability to raise armies.
I am stumped how so many intelligent people believe that States are exempt from some general provisions of the Constitution, and especially the amendments, which clearly govern the states.
Yes, you might say that, but common law of the time required that militia, if summoned, should show up with a firearm, a quantity of ball and powder for their weapon.
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