By Douglas V. Gibbs
In recent days I have written extensively about the Bill of Rights, such as in one of my articles on the Myths of the Constitution, and in an article titled "Changing the Constitution and the Conditioning of America." In the latter article a reader commented:
I understand your argument. However, I shudder to think what would happen if the Bill of Rights did not apply to the States as you argue. For example, as a resident of California, I am certain to lose my 2nd Amendment rights to bare [sic] arms.
The judiciary has changed the Constitution unconstitutionally. Illegally. The Bill of Rights is not supposed to apply to the States. The Bill of Rights is only supposed to apply specifically to the federal government.
Frank may be right that if left to the State of California his right to keep and bear arms may be in jeopardy - but that may not be a foregoing conclusion.
Let's break all of this down to understand it. One must understand that it is very dangerous to have the Second Amendment applied to the States. In McDonald v. Chicago, that is exactly what they did, and it was a wrong decision. It was the "conservative" judges that did it, and they were wrong.
In order to understand what I mean by this, we need to really go over the 2nd Amendment itself. It reads: "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."
First of all, it is "necessary to the security of a free State." Security of a free State from what? If you are worried about the security of a free State, and when they say free State they mean a free Virginia, a free Massachusetts, a free Georgia, a free California, and so on; how is the freedom of the State at risk? When you talk about the freedom of the State, they mean from a potentially tyrannical federal government. A well regulated militia is necessary for protecting the States from invaders, foreign attackers, and a potentially tyrannical central government. If the States need protection, why would they need protection from themselves? This is the first clue that the 2nd Amendment only applies to the federal government.
Of course, we can go back to the writings of the Founders and of the writers of the 14th Amendment, to prove the original intent was for the Bill of Rights to only apply to the federal government, and that the provisions of the 14th Amendment were not designed to change that. The change has happened over time through the judiciary. The judges, through case law, have decided that the Bill of Rights applies to the States.
The courts are wrong.
Besides, only amendments can change the Constitution.
The real key to the 2nd Amendment argument, however, is contained in the final words of the article. "Shall not be infringed." Think about that for a moment. The right of the people to keep and bear arms "shall not be infringed." Shall is a definitive term, and it does not say "shall not be infringed unless you are crazy or a felon." It says simply, "shall not be infringed."
So, to go back to Frank's comment, he shudders to think what would happen if the 2nd Amendment did not apply to the States. Well, based on the words "shall not be infringed," if the 2nd Amendment does in fact apply to the States, then the States cannot have any laws restricting firearms whatsoever. That's what the language says. "Shall not be infringed." That means, shall not be infringed in any way.
If the 2nd Amendment applies to both the federal government and the States, that means that everybody in this nation can possess firearms. Shall not be infringed, at both the federal and state level, means that my eleven year old nephew can walk into a gun store and walk out with a firearm and ammunition with no background check, not restrictions, no questions asked.
Shall not be infringed.
The language "shall not be infringed" is there because it applies specifically to the federal government. The federal government "shall not infringe" on our right to keep and bear arms.
Remember, all of the powers belonged to the States before the Constitution created the federal government. Through the Constitution the States granted some of their powers to the federal government so that it may function. The Bill of Rights was actually not necessary. The 2nd Amendment was not technically necessary. They weren't necessary because no where in the Constitution does it give the federal government the authority to regulate firearms. The way the Constitution is written, if the power is not expressly granted to the federal government, the federal government does not have that authority.
Then the Tenth Amendment tells you that, "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."
So, in other words, if the power is not granted to the federal government, and it is not prohibited to the States (such as in Article I, Section 10), then it is a State power, a State authority, a State issue, a State function. Therefore, in the Constitution, the Second Amendment not withstanding, there is no authority for the federal government to regulate firearms. That means that the authority of regulating firearms falls upon the States. The 2nd Amendment recognizes that because of the language used. "Shall not be infringed" does not allow for any regulation whatsoever when the 2nd Amendment is applied, therefore, the 2nd Amendment only applies to the federal government because only the federal government is not allowed to regulate in any way, shape, or form our right to keep and bear arms.
The States, however, may regulate firearms.
Frank's worry is that the States, specifically California, can't be trusted, and will strip away his right to keep and bear arms if given the opportunity. Well, if your State is willing to regulate firearms to the point that you cannot possess a firearm, then change it. Don't let it happen.
The Founding Fathers were not concerned about the States because the States are closer to the people. Also, if the State governments begin to act tyrannical, it is not in the State's best interest. The States work in a fashion similar to a free market system. They need you as a resident. If they begin to pass laws you don't like, you have the ability to move out of the State, which would make them lose tax dollars, and possibly representation in Congress since their representation in the House of Representatives is based on population. Therefore, the States ought not act tyrannical because of that check against them by the citizen's right to vote with their feet.
We've seen this happening of late. Based on the latest census, some States have lost some of their representatives, and some states have gained in that number, because of the changes in population.
"Shall not be infringed." The 2nd Amendment does not say "shall not be infringed, except..." The federal government shall not infringe on your right to keep and bear arms because we need a well regulated militia to protect our States. We don't need to protect the State from itself, but from foreign invaders or the federal government.
"Shall not be infringed." If the 2nd Amendment is followed to the letter, no registration requirements or restrictions by the federal government are constitutional. The federal government is not allowed to infringe on your right to carry a firearm, fire a firearm, or possess a firearm in any way. That includes felons, people currently considered to be mentally unstable, or those with other violent histories. The federal government shall not infringe on your right regarding firearms for any reason, period, according to the 2nd Amendment.
The 2nd Amendment applies to the federal government only, therefore the States can regulate firearms.
"What if the State takes away my right to keep and bear arms," Frank seems to be asking.
Don't let them.
You are closer to your State government than you are to your federal government. You have more control over your State government than you do over your federal government.
Don't let them.
Be involved locally.
The States can regulate firearms, the federal government cannot. The 2nd Amendment does not apply to the States. Clarence Thomas, Scalia, Roberts, Alito and Kennedy in the McDonald v. Chicago case were wrong. If Chicago wants to ban hand guns, if it is in line with the Illinois State Constitution, they have every right to do so. It's poor judgement, it's dangerous, but they can. If the people of Chicago didn't like it, then they needed to change the law, or move to a place where they could possess such weapons. It is the people's responsibility to make sure their local government behaves. It is not the responsibility of the federal government to make sure local governments behave regarding local authorities.
Shall not be infringed means no regulation, no restrictions, no registration, nothing. So, if the 2nd Amendment applied to the States, that would mean that anybody and everybody can purchase, own, possess, and use firearms without any restrictions whatsoever.
Do you think that felons should be able to possess firearms? Should crazy people be allowed to own guns? Do you think that the six year old that lives up the street should be able to walk into a gun shop, buy a gun, walk out of it, and start firing it indiscriminately without any restrictions?
Of course not!
We want some restrictions. That's what the States are supposed to do. That is why the 2nd Amendment doesn't apply to the States. If the 2nd Amendment does apply to the States, the States could not do their duty in restricting firearms as the State deems necessary. If the State begins to over-restrict, acting tyrannical, it is up to the people to change it. You live in your State. It is your responsibility to make sure your State legislature behaves. If you don't like what they are doing, be involved, and change it. Or, move out of the State to a State more in line with what you believe. If enough people start leaving the State, they will fix it, they will change it, they will turn things around because a loss of population hurts the State when it comes to revenue and representation in Congress.
The 2nd Amendment is only supposed to apply to the federal government. The language used in the 2nd Amendment is our evidence.
Remember, the Bill of Rights is not actually necessary. The federal government in the text of the Constitution has no authority to regulate firearms. Nowhere in Article I, Section 8 does it say that they can. Just to be on the safe side, in order to make the anti-federalists happy who were worried about a tyrannical federal government, the Bill of Rights was written. The provisions of the Bill of Rights are a reminder, a clarification, that the federal government cannot infringe on the rights of the people. The 2nd Amendment is a clarification that the federal government cannot infringe on the right to keep and bear arms for any reason. It is a State authority. The States have the authority to regulate firearms, the federal government does not. That is what the 2nd Amendment is saying.
If I hear another conservative say, "Thank God the 2nd Amendment applies to the States..."
You don't want the 2nd Amendment applying to the States. If the 2nd Amendment applies to the States, all State laws regarding firearms are null and void. If followed to the letter, there can be no waiting periods, no regulation, or restrictions. If the 2nd Amendment applies to the States, then all restrictions are null and void. Anybody can get their hands on any firearm legally, if that is the case, because it says "shall not be infringed." And, if the 2nd Amendment applies to the States, and the federal government changes the definition of our right to keep and bear arms to that of a collective right, our individual right to keep and bear arms will be gone.
Going back to McDonald v. Chicago, if the 2nd Amendment truly is supposed to be applied to the States by the federal government, then what we saw in that case, even if the answer seems to be a win for gun rights, was the federal government, through the United States Supreme Court, dictating to a city (and therefore, a State) what it can, or can't, do regarding gun rights. What could go wrong?
Federalist 45 by James Madison is clear when it comes to the authorities, and how they are divided between the federal government and the States.
"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States."
-- Political Pistachio Conservative News and Commentary
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