Gunning Down the Constitution (Southern Avenger)

American Conservative ^ | 2010-03-04 | Jack Hunter aka Southern Avenger

[rabscuttle385]

When the City of Chicago banned all handguns recently, countless Americans rightly cried foul. When it looked like the Supreme Court might overturn the ban, gun-rights advocates cheered the decision. But while their heart is in the right place, their enthusiasm is not, as what gun-rights advocates are really cheering is the federal government assuming even more power.

The Bill of Rights was never intended to be a list of individual rights, but a list of things the federal government could not do to the states. Patrick Henry and his anti-federalist friends did not want an all-powerful “national” government and insisted the Bill of Rights be added to the Constitution in order to make crystal clear that the federal government’s powers were few, limited, and only those delegated to it by the states. The rights to free speech, freedom of religion, and to keep and bear arms were rights the federal government could never take away from the states, allowing states to regulate speech, religion — and yes, firearms — as each saw fit. Today, the Founders would declare federal gun legislation like the Brady Bill to be unconstitutional, pointing to the 2nd, 9th, and 10th amendments. The Founders also would have declared Chicago’s gun ban constitutional (albeit stupid), also pointing to the 9th and 10th amendments. The 2nd amendment does not apply to the Chicago gun ban because the federal government is not involved — nor should it be.

Constitutional historian Kevin Gutzman put the Founders intentions into perspective during an interview with radio host Mike Church: “when we have a Second Amendment, essentially what that means is that the federal government is to have nothing to do with your ownership and use of weapons. But that doesn’t mean that nobody is able to regulate your ownership and use of weapons. If neither the federal government nor the states can regulate ownership of weapons, are we saying that retarded people and insane people and felons and children can all own weapons? Clearly some level of government has to be able to regulate the use and possession of firearms.”

So how can the Supreme Court overturn Chicago’s ridiculous, yet constitutional law using the 2nd amendment? Also, why should conservatives — typically champions for gun rights — be opposed to this court decision? Because this decision would trample the most important right of all — that of the states to limit the power of the federal government.

Reporting on the Chicago controversy, a Washington Times headline this week read, “Gun rights lawyer gives hope to liberal causes: 14th Amendment argument opens to gay rights, abortion.” Using what’s called the “incorporation doctrine,” the Supreme Court has argued that the 14th Amendment, which was meant to protect the basic rights of former slaves after the War for Southern Independence, magically turned the Bill of Rights into a list of individual rights. If this is true, as the Supreme Court is about to declare once again in the Chicago case, then federal law trumps state law anytime the court sees fit, completely ignoring the Bill of Rights’ intended purpose of limiting federal authority. What some consider a small victory for gun rights is actually a grand defeat for limited government. If Patrick Henry were alive, he would likely be reaching for his musket.

What happens when the court decides that gay marriage is a “right,” or that healthcare is a “right,” two concepts many liberal Democrats already subscribe to? States will be powerless to stop the invention of these and other new “rights” and completely at the mercy of federal judges. Reported the Washington Post: “Justice Stephen Breyer needled the majority about its rather situational view of federalism when it comes to ‘incorporating’ the Second Amendment to make it binding on states rather than just the federal government. ‘Without incorporation, it’s decided by state legislatures,’ he said. ‘With, it’s decided by federal judges.”

In his book Original Intentions: On the Making and Ratification of the United States Constitution, conservative author Mel Bradford warned against embracing unconstitutional court decisions based on situational whims: “Legitimate change in the Constitution can only be made by amendment-not by the will of the High Court, its well-meaning, teleocratic misuse of its originally narrow and specific role within the law. For if it does not keep the law, who will? And if the law itself is personalized or politicized at its source, who among us is secure?”

I’m not a constitutional scholar. In fact, I’m not a scholar of any kind. My observations, whether on talk radio or in my columns, are the thoughts of an average American with an average education attempting to deduce simple truths about our nation and its government. But one need not be an expert of any sort to recognize that our federal government has long trended toward increased centralization, sometimes in the name of the Constitution itself. As Bradford noted, if the federal government is to be the sole arbiter of its own power then there really are no limits to that power, and those who still believe in the Founders’ constitution should not cheer its destruction by championing increased centralization over local control, federal dictates over states’ rights and “conservative” victories that are not.

[rabscuttle385]

fyi

[PackerBoy]

95% of this is bovine excrement.

[piytar]

It’s clear this author isn’t a Constitutional scholar, as he states. There are two major errors in the following sentences at the heart of his argument:

“Using what’s called the ‘incorporation doctrine,’ the Supreme Court has argued that the 14th Amendment, which was meant to protect the basic rights of former slaves after the War for Southern Independence, magically turned the Bill of Rights into a list of individual rights.”

The purpose of the 14th was to protect freed slaves - individuals - from being deprived of their rights, specifically including 2nd Amendment rights, by the states. Thus, “incorporation” was the entire point of the Amendment. It didn’t “magically” turn the Bill of Rights into a list of individual rights. It explicitly did so. (Aside: The Privileges and Immunities clause should be the basis for this, not Due Process. However, P&I got gutted in the Slaughterhouse cases, and the SCOTUS has never admitted the Court botched that ruling for various reasons, so they shoe-horned the same goal into “Due Process.”)

“If this is true, as the Supreme Court is about to declare once again in the Chicago case, then federal law trumps state law anytime the court sees fit, completely ignoring the Bill of Rights’ intended purpose of limiting federal authority.”

The 14th isn’t a “federal law,” it’s a Constitutional Amendment, approval of which involved the states. Thus, it trumps all federal laws, state laws, and even state Constitutions. Furthermore, because it amended the Constitution as it stood before its ratification, it by definition modified (”trumped”) the Constitution and the first 13 Amendments. That obviously includes the 9th and 10th Amendments.

[KrisKrinkle]

“95% of this is bovine excrement.”

Agreed.

From the article:

“The rights to free speech, freedom of religion, and to keep and bear arms were rights the federal government could never take away from the states,”

He really thinks these are State rights, not individual rights?

From the article:

“I’m not a constitutional scholar. In fact, I’m not a scholar of any kind.”

That’s part of the 5% that’s not bovine excrement.

[oldenuff2no]

This author is full of crap. The constitution clearly states that these are the People’s rights.

[bone52]

It is ridiculous in articles to discuss how unconstitutional the application of the 2nd amendment to the states is. Similarly moronic is the assertion that the 14th amendment overturned the Constitution. These arguments are the same type of loser arguments that the gay community was raising in California in response to proposition 8, namely, that an amendment is unconstitutional.

Additionally, it is likewise moronic for people to assert that the incorporation of the 2nd strips states of their rights to regulate firearms and would result in “retarded people and insane people and felons and children” owning firearms. Anyone who has read the Supreme Court decisions realizes that they did not assert that any regulation of arms is unconstitutional. And, while they have not determined which standard will be used to measure reasonableness, states will be allowed to prevent “retarded people and insane people and felons and children” from owning weapons.

Finally, when people make all of these stupid assertions they seem to forgot one of the keys of constitutional interpretation;

“A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.” McCulloch v. Maryland.

In other words, we should look at the structures and the objects of the Constitution in interpreting its language.

For originalists who don’t want to rely on the 14th amendment, there is a powerful argument for the incorporation of the 2nd against the states to the extent that that limits states abilities to regulate away ownership of firearms.

Article I Section 8 reads “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”

Article II section 2 states, “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”

The Constitution clearly provides for the existence of the militia and gives the Federal government certain control over that milita. Further, the militia was a critical, albeit unpredictable part of the function of the armed forces at the time of the Constitution.

As further stated in McCulloch v. Maryland, “This great principle is that the Constitution and the laws made in pursuance thereof are supreme; that they control the Constitution and laws of the respective States, and cannot be controlled by them. From this, which may be almost termed an axiom, other propositions are deduced as corollaries, on the truth or error of which, and on their application to this case, the cause has been supposed to depend. These are, 1st. That a power to create implies a power to preserve; 2d. That a power to destroy, if wielded by a different hand, is hostile to, and incompatible with these powers to create and to preserve; 3d. That, where this repugnancy exists, that authority which is supreme must control, not yield to that over which it is supreme.”

In short, states do not have power to destroy objects within the power of the federal government - the federal government is supreme.

In light of this, it is clear that states originally lacked power to regulate ownership of firearms at least to the extent that that regulation would in any way undermine the existence and vibrancy of a militia.

To quote Scalia in the oral arguments of McDonald, “Let’s assume that the only reason [the second amendment] is there and the only purpose [the second amendment] serves is the militia purpose. Isn’t that militia purpose just as much defeated by allowing the States to take away the militia’s arms as it would be by allowing the Federal Government to take away the militia’s arms?”

The 2nd has always applied to the states in some form and is clearly the case since the passing of the 14th amendment. The Supreme Court should incorporate it against the states.

[DaveTesla]

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. 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.

[piytar]

“Furthermore, because it amended the Constitution as it stood before its ratification, it by definition modified (’trumped’) the Constitution and the first 13 Amendments.”

BTW, by that I don’t mean the 14th “overturned” the Constitution, but to the degree the Constitution and first 13 Amendments conflicted with the 14th, it, well, AMENDED them.

[UnbelievingScumOnTheOtherSide]

Lame attempt by liberal to confuse conservatives.

Yes, it takes away my neighbor’s “right” to use state power to take my gun.
That is no loss any more than when he is prevented from voting away any of my other rights.

[ThePatriotsFlag]

Question for the thread. Yesterday Tom Gresham (Gun Talk) mentioned that the 1st amendment was “incorporated” that’s why it applies everywhere. Now I have also found out that the 2 and 6th amendments are “not incorporated.” Somehow this means that it is Constitutional “except” in Chicago where they can decide NOT to follow it. Can anyone give us a quick explanation of this “incorporation” and why those two amendments are “not incorporated?” Thank you.

[MNJohnnie]

Absurd nonsense. Constitutional Rights are universal. This whole argument is utterly ignorant of basic principals of law. The states cannot pick and choose which amendments of the Constitution they will, or will not, abide by.

[GailA]

“Freedom is never more than one generation away from extinction. We didn’t pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children’s children what it was once like in the United States where men were free.” ~~ President Ronald Reagan
OBAMANOMICS—TRICKLE DOWN DESTRUCTION of the economy
Bambi doesn’t keep his promises...so buyer beware!

SET THEIR LOCAL AND DC LINES ON FIRE!

PLEASE ASK THEM TO REPEAL THE BIG NEW FEES in TRICARE for Life, the retired Military over 65 secondary health ins. which they passed in a DOD bill. They promised our Military these benefits, and our Military have earned them.

Sen Scott Brown’s number is 202-224-4543
Capitol Hill switchboard is 202-224-3121

Lots of local demwit phone numbers on this thread
http://www.freerepublic.com/focus/news/2408217/posts

Rename, repackage, rewrite it a tad smaller, and sell another pig in a poke. NO COLAs for granny, retired Military or retired fed employees. BIG NEW fees for Tricare for Life retired over 65 Military’s secondary health ins. (DOD bill already passed, delayed but goes into effect 2011 NEEDS TO BE REPEALED!
..............................

OBAMA’s WAR ON SENIORS http://www.freerepublic.com/focus/f-news/2433867/posts/

New Dem mantra: Woof, woof eat dog food granny....ala let them eat cake.

Obama says slight fix will extend Social Security, http://townhall.com/news/us/2010/02/19/obama_says_slight_fix_will_extend_social_security

Health Care Rationing for Seniors Another Problem in New Obama Plan http://www.lifenews.com/bio3058.html

Medicare tax may apply to investment income (ObamaCare tax hike)
http://www.freerepublic.com/focus/f-news/2460988/posts

Obama: No reduced Medicare benefits in health care reform
http://www.cnn.com/2009/POLITICS/07/28/obama.health.care/index.html

Will healthcare reform mean cuts in Medicare for seniors?
http://www.csmonitor.com/USA/Politics/2009/1017/will-healthcare-reform-mean-cuts-in-medicare-for-seniors

Health Reform’s Hidden Victims Young people and seniors would pay a high price for ObamaCare.
http://online.wsj.com/article/SB10001424052970203517304574306303720472842.html

.....................………………………..

SOCIALIZED MED THREAD http://www.freerepublic.com/focus/news/2464538/posts
.........................…………………………..

MILITARY & Retired MILITARY
Veterans’ G.I. Bill benefits MIA
http://www.freerepublic.com/focus/f-news/2464680/posts
TRI CARE FOR LIFE This from a google search:

http://economicspolitics.blogspot.com/2009/05/tricare-for-life-is-obama-trying-to.html

This option would help reduce the costs of TFL, as well as costs for Medicare, by introducing minimum out-of pocket requirements for beneficiaries. Under this option, TFL would not cover any of the first $525 of an enrollee’s cost-sharing liabilities for calendar year 2011 and would limit coverage to 50 percent of the next $4,725 in Medicare cost sharing that the beneficiary incurred. (Because all further cost sharing would be covered by TFL, enrollees could not pay more than $2,888 in cost sharing in that year.) http://www.cbo.gov/ftpdocs/99xx/doc9925/12-18-HealthOptions.pdf

Bill Would Restrict Veterans’ Health Care Options 11/06/09
Buyer and McKeon Offer Amendments to Protect Veterans and TRICARE Beneficiaries

Congress plans to block Tricare fee increases
http://www.armytimes.com/news/2009/10/military_tricarefees_blocked_100709w
http://www.navytimes.com/news/2009/10/military_tricarefees_blocked_100709w/

By Rick Maze - Staff writer, Oct 7, 2009

Tricare fee increases imposed last week by the Defense Department will be repealed by a provision of the compromise 2010 defense authorization bill unveiled Wednesday by House and Senate negotiators.

The fee increases were announced on Sept. 30 and took effect on Oct. 1, but the defense bill, HR 2647, includes a provision barring any fee increases until the start of fiscal 2011.

Retired Army Maj. Gen. Bill Matz, president of the National Association for Uniformed Services, said the announcement of fee increases was shocking considering that the Obama administration promised earlier this year to hold off on any new fee Tricare fee increases until fiscal 2011.

“President Obama and DoD assured NAUS and the entire military family earlier this year that there would rightly be no increases in any Tricare fees” in fiscal 2010, Matz said. “We took them at their word, and I can’t believe that a co-pay increase like this was allowed to go forward,” he added.

[GailA]

Obamacare call list: Courtsey of TN Eagle Forum:
PLEASE CALL! DC OFFICE LOCAL OFFICE State District
Harry Mitchell (202) 225-2190 (480) 946-2411 AZ 5th District
Gabrielle Giffords (202) 225-2542 (520) 881-3588 AZ 8th District
Ann Kirkpatrick (202) 225-2315 (928) 226-6914 AZ 1st District
Jerry McNerney (202) 225-1947 925-833-0643 CA 11th District
John Salazar 202-225-4761 970-245-7107 CO 3rd District
Jim Himes (202) 225-5541 (866) 453-0028 CT 4th District
Alan Grayson (202) 225-2176 (407) 841-1757 FL 8th District
Bill Foster (202) 225-2976 630-406-1114 IL 14th District
Baron Hill 202 225 5315 812 288 3999 IN 9th District
Mark Schauer (202) 225-6276 (517) 780-9075 MI 7th District
Gary Peters (202) 225-5802 (248) 273-4227 MI 9th District
Dina Titus (202) 225-3252 702-256-DINA (3462) NV 3rd District
Carol Shea-Porter (202) 225-5456 (603) 743-4813 NH 1st District
Tim Bishop (202) 225-3826 (631) 696-6500 NY 1st District
John Hall (202) 225-5441 (845) 225-3641 x49371 NY 19th District
Bill Owens (202) 225-4611 (315) 782-3150 NY 23rd District
Mike Arcuri (202)225-3665 (315)793-8146 NY 24th District
Dan Maffei (202) 225-3701 (315) 423-5657 NY 25th District
Earl Pomeroy (202) 225-2611 (701) 224-0355 ND At-Large District
Steven Driehaus (202) 225-2216 (513) 684-2723 OH 1st District
Mary Jo Kilroy (202) 225-2015 (614) 294-2196 OH 15th District
Zach Space (202) 225-6265 (330) 364-4300 OH 18th District
Kathy Dahlkemper (202) 225-5406 (814) 456-2038 PA 3rd District
Patrick Murphy (202) 225-4276 (215) 826-1963 PA 8th District
Christopher Carney (202) 225-3731 (570) 585-9988 PA 10th District
Paul Kanjorski (202) 225-6511 (570) 825-2200 PA 11th District
John Spratt (202) 225-5501 (803)327-1114 SC 5th District
Tom Perriello (202) 225-4711 (276) 656-2291 VA 5th District
Alan Mollohan (202) 225-4172 (304) 623-4422 WVA 1st District
Nick Rahall (202) 225-3452 (304) 252-5000 WVA 3rd District
Steve Kagen (202) 225-5665 (920) 437-1954 WI 8th District
Bart Gordon (202) 225-4231 TN
Bart Stupak (202) 225 4735 MI
senator mark begich (202) 224-3004 toll free. (877) 501 - 6275 just became a MAYBE
John Tanner (202) 225-4714, Union City, (731) 885-7070, Jackson Phone: (731) 423-4848, Millington (901) 873-5690

[William Tell]

ThePatriotsFlag said: Can anyone give us a quick explanation of this “incorporation” and why those two amendments are “not incorporated?”

The Second Amendment has not been "incorporated" previously simply because the Supreme Court has consistently refused to take cases that would accomplish explicit "incorporation".

Assuming that the McDonald decision accomplishes "incorporation", then the effect of that decision will be that the Second Amendment was included in the protections of the Fourteenth Amendment and has been included since the passage of the Fourteenth.

I'm puzzled by the comment that the Sixth Amendment has not been "incorporated" since I was under the impression that many of those protections are enforceable against state laws.

[ExGeeEye]

The Bill of Rights was never intended to be a list of individual rights, but a list of things the federal government could not do to the states.

Wrong!

Individuals, not states, practice religion and need their right to speak, print, or assemble protected.

Individuals, not states, are the "People" whose right "to keep and bear arms shall not be infringed."

It is not the States, but Individuals who have houses in which soldiers may not be quartered.

Individuals, not states, need to be secure in their persons etc. against search and seizure.

Need I continue?

[bamahead]

Would definitely like to grab them early before the prices start to climb.

Wow - he is so far off the reservation with this one I don't know where to start.

Sorry, but the enumerated bill of rights are rights that were INHERENT to individuals before they were ever penned to paper. The right to speech, the right to self defense...they are simply CODIFIED in the U.S. Constitution to prohibit their transgression by ANY form of government who ratifies it.

Only the 10th amendment identifies the UNENUMERATED rights to the states, or the people. 2A is most certainly enumerated.

If this decision goes the way it should, the courts' decision will prohibit BOTH state and federal governments from unconstitutional transgression. Why is that so hard to understand???

The 'Southern Avenger' just lost whatever minute amount of respect he had of mine to begin with.

What an absolute idiot.

[bamahead]

Would definitely like to grab them early before the prices start to climb.

Wow - and I have no idea how that ended up in my post (from a private email to someone else!)