The American Spectator : The Second Amendment, Incorporated

Text Size

Constitutional Opinions

The Second Amendment, Incorporated

By Ross Kaminsky on 6.29.10 @ 6:09AM

Yesterday’s high court ruling was the correct one — but also troubling.

On Monday morning, the Supreme Court handed down its decision in the case of McDonald v Chicago, a follow-on case to the Heller case in which the Court ruled that the right to keep and bear arms is an individual, not a collective, right. Following Heller, Chicago and a few other localities argued that since that case had been about the District of Columbia’s ban, it was not clear that the Court’s ruling applied to states and other non-federal territory.

With its 5-4 decision in McDonald, the Court says that the right applies everywhere in the U.S., that the right to keep and bear arms applies equally in cities and states as in D.C. The 5-4 decision comprised a plurality made up of Justices Alito, Roberts, Scalia, and Kennedy who were joined by Justice Thomas in a separate opinion upholding the outcome of the case but not the path the plurality took to get there. (More later on this important disagreement within the Court’s “conservative” wing.) Although the Court’s ruling is clearly the right one, two aspects of the decision are troubling.

First, while I might understand how the Court’s liberals opposed the original Heller decision, which found that individuals have rights under the Second Amendment, the fact that those same liberals would then argue that a settled right somehow does not apply to the states is remarkable, particularly given how almost every constitutional right we have based on the original Bill of Rights has been interpreted by the Court to be “incorporated” via the 14th Amendment’s “Due Process” clause.

In their controlling opinion, the plurality point out that “Municipal respondents’ remaining arguments are rejected because they are at war with Heller’s central holding. In effect, they ask the Court to hold the right to keep and bear arms as subject to a different body of rules for incorporation than the other Bill of Rights guarantees.”

In his dissent from this decision, Justice Breyer made several complaints about it, each of which the plurality thoroughly disassembles. Two of those complaints are particularly interesting: First, “‘there is no popular consensus’ that the right is fundamental.” Beyond the fact that Breyer’s statement is wrong, the Court makes the key point that “we have never held that a provision of the Bill of Rights applies to the States only if there is a ‘popular consensus’ that the right is fundamental, and we see no basis for such a rule.” Breyer’s argument is disturbingly similar to Supreme Court nominee Elena Kagan’s statement that “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” Kagan’s argument is, as Chief Justice John Roberts accurately described, “startling and dangerous.” Breyer’s argument isn’t much different: essentially that a fundamental American right should be upheld or not upheld based on whether that right is “popular,” essentially just another version of subjecting a right to a verdict by “society.”

Breyer (along with Justice Stevens in a separate dissent) also suggested that the Court should not interfere in this particular area of state versus federal government relationship. This from people who can’t even spell “federalism ” except when they can use it to limit freedom. The Court’s plurality in McDonald offered this retort:

…incorporation of the Second Amendment right will to some extent limit the legislative freedom of the States, but this is always true when a Bill of Rights provision is incorporated. Incorporation always restricts experimentation and local variations, but that has not stopped the Court from incorporating virtually every other provision of the Bill of Rights.

Additionally, in response to the similar point made by Justice Stevens, the majority notes that “The relationship between the Bill of Rights’ guarantees and the States must be governed by a single, neutral principle.” You don’t say.

The sadly accurate implication of the majority’s comment on the dissents is that the “liberal” dissenters simply do not believe in the rule of law. They believe in decisions based on a desired outcome at a given time based on no particular fundamental principle.

It is remarkable that all of the Court’s liberals voted against applying our Second Amendment rights within the states even after the Court had ruled that the Second Amendment did guarantee a fundamental right. Just as they only consider federalism when it involves restricting constitutional rights, they also only respect even the most recent precedent when they’re happy with the outcome. Indeed, Justice Scalia offers an extremely harsh and sarcastic view of Stevens’ dissent, saying that Stevens somehow just “knows that the right to keep and bear arms is out (while)…only ‘some fundamental aspects of personhood, dignity and the like’ are protected.” In other words, Stevens protects the rights he wants to protect, not protecting rights because they are rights.

There is another very important legal question involved in McDonald, which was seen in the most unusual spectacle of the plaintiff’s attorneys arguing the case before the Court using two different theories of law. (That splitting of efforts and focus caused some to worry that the Court might somehow not come to the correct verdict in the case.)

These two theories involve whether to incorporate the Second Amendment into a broader (i.e. not just federal) right through the 14th Amendment’s “Due Process” clause or through the “Privileges or Immunities” clause. Without getting into too much legal minutiae (although important minutiae), the Supreme Court could use either of these clauses to incorporate rights, but the Privileges or Immunities path offers, in the views of many libertarians and constitutional purists, the correct path and the best opportunity for broadening liberty, especially economic liberty, based on a precedent that would overturn the Slaughter House cases of the late 1800s when the Court gutted that part of the 14th Amendment. You can read more about the legal debate in this interesting Reason analysis positing the two different views as pitting conservatives versus libertarians. The libertarian Cato Institute and the Institute for Justice both wrote Amicus briefs urging the court “to correct a long-standing error by restoring the Privileges or Immunities Clause…to its proper role as a source of federally protected individual rights.”

In the end, only Justice Thomas took a forceful position in favor of this view, writing in his opinion that while our Second Amendment rights are “‘fundamental’ to the American ‘scheme of ordered liberty,’” “I cannot agree that it is enforceable against the States through a clause that speaks only to ‘process.’ Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities Clause.”

Unfortunately, even though Justice Scalia also expressed sympathy with this legal route, the plurality ended up incorporating our right to keep and bear arms through the Due Process clause which, as its name suggests, is better suited for matters that relate to process rather than fundamental rights.

Thomas gets it right again: “The notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words. Moreover, this fiction is a particularly dangerous one. The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish ‘fundamental’ rights that warrant protection from nonfundamental rights that do not.”

Page: 1 2 >

About the Author

Ross Kaminsky is a self-employed trader and investor and is a senior fellow of the Heartland Institute. He is the host of The Ross Kaminsky Show on Denver’s NewsRadio 850 KOA at 11 AM on most Sundays. You can reach Ross by e-mail at rossputin(at)rossputin(dot)com.

Letter to the Editor View all comments (259) | Leave a comment Leave a comment

Ret. Marine| 6.29.10 @ 7:03AM

... a place where the Constitution comes to mean even less than it means already.....it exactely what this pretender-n-theif meant when he and his gang elected Soyta-mywhore to the Court. Now we have yet another of the "won's" detached mentality about to enter the hall of " and justice for all" with the same mindset. Yeah this pretender-n-theif has this privledge to do so, but, it still does not let him off the hook for his ideology and disdane for the American free-born. This land is a land with the rule of God's laws, not man's and the last time I saw his lieing ass on the T.V. he was still a man and is not waalking on water as of yet. But, by his decision to put another ideologe in place to see to it that the rule of man applies, he failed to consider the number one rule for all of us with the "liberty bug" in our guts, "don't tread upon me". It means just what it says, it took a Revolution to prove it, don't make me break my foot up in your arse to prove it again. What is really a concern for this devil dog out in the pasture of the homeland USA, is the fact that 4 of these people who swore to protect the Constitution are now, and have been for awhile now, with the understanding that they alone pocess the right to mark their territory with their filth at the begining of my territory of "don't tread upon me" border-line. The freedoms I have do not come from their interpretation of my "God given rights" with out a cause or an effect, be it my life or theirs, it's worth the effort. Obiedence to God is disobiedence to tyrants. So go ahead and make my day punks.

Clinton nee Publius | 6.29.10 @ 10:26PM

I like it how they "ALLOW" us to have what God gave us. Gee thanks. Next they will be "ALLOWING" us to live in concentration camps or "ALLOWING" us to pay all our earnings to support a corrupt government that only steals more money to steal more money.

DaveS| 6.30.10 @ 12:26PM

If Stevens is the strongest they have, with even the likes of a lightweight Kagan coming up, Scalia will lack no opportunity to skewer the liberals as long as he is there. Thomas seems above the fray, shows how good he is as a reasoned jurist (and well beyond the capacities of Thurgood Marshall), and gets us back to the basics. He's a delight to read because he is both clear and brief. Heller is only two years old, and the liberals ignore it altogether - irrationally, as though citizens in DC are somehow different from citizens in Spokane. Breyer, the wordy and lofty one, is a dunce. Sotomayor is a hack who couldn't get the New Haven firefighters case correct - something a first-year student with no predilections would correctly obtain. Thomas looks like John Marshall, by comparison. Thomas: my favorite justice; Scalia, my favorite counter-puncher.

August Paul Hinton| 7.1.10 @ 5:03PM

I wholeheartedly agree with this retired Marine. A right isa right not given by sleazy politicians, but by Almighty God! It is not a privilege that can be denied by treasonous judges that are so guilty of betraying their trust and violating the privileges allowed them by "WE THE PEOPLE" Now is the time for all real Americans to stand up and be counted. Getrid of the GREAT PRETENDERS.

JJ| 7.18.10 @ 8:07AM

I like what you have to say, devil dog. Couldn't agree with you more. The supreme irony is, that We, that is real patriots, would have to die to protect this poge-in-chief's life. It was (and is) part of the job. Still, we will conquer; our rights will be restored to their proper value; ALL tyrants eventually succumb, and we will continue to buy our freedom the old fashioned way: with our blood. Semper Fi.

Melvin| 6.29.10 @ 7:23AM

Doesn't it seem awfully odd, that after many, many years after our Constitution was drafted and ratified by the states, and became the fabric of laws based on the rule of law, that the 2nd Amendment has to go before the robed ones.
What was wrong with the first time. did the founders miss something that this amendment had to go before judicial review?
If our elected leaders would just follow the Constitution instead of interpreting and twisting it for their own political machinations, the Supreme Court wouldn't have to keep doing this, the states already did it, and were satisfied with it.
If Chicago Mayor Richard Daley, or the City Council of Washington D.C. were around during the time prior, during, and after the revolutionary war, we would have never became a Country.

RCV| 6.29.10 @ 11:54AM

The founders would have, in fact, been astounded that the Second Amendment restricted the right of states to regulate firearms. The Amendment, reads in full, "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 extensive debates in the State Legislatures on adeoption of the Bill of Rights makes quite clear that the concern of the states was that the federal government would maintain a standing army, and neglect to provide for the state militias or even abolish them. THAT was the clear purpose of the second amendment, as its prefatory clause (only one of two in the whole constitution) makes clear. Its militia preservation purpose is further made clear by the text of one of its original draft, which went on to say, "but no persons religiously scrupled against bearing Arms shall be required to do so." The 13 colonies, later states, all had a myriad of state laws on gun ownership, including some that required arms to be locked in a community Magazine, and others that placed limits on gun ownership. This Supreme Court's two opinions on the Second Amendment are judicial activism at its worse -- the creation of a new right to suit the majority's political views, and then extension of that right in a way that perverts the original intent of the Second Amendment.

Big Leo| 6.29.10 @ 1:23PM

Your analysis is marred by lack of factual backup. There were no state militias in 1787-- they were local. Furthermore, the Federal government already had been given the right to have a standing army. If you read the Federalist Papers, you will find a number of references to this being an individual, not a corporate right. It is interesting to note also that if the Second Amendment was an enabling act for governmental action rather than a personal right, it would be the ONLY such provision in the Bill of Rights that was.

RCV| 6.29.10 @ 4:05PM

There really is a lot of good legal historical writing on this subject - the struggle between the Federalists, on the one hand, who wanted a centralized military power to put down domestic insurrection as well as fight foreign enemies, and the anti-federalists, who wanted state militias as the primary protection for citizens and feared standing armies. An excellent place to start is the book, "Gun Control and the Constitution: Sources and Explorations on the Second Amendment ", edited by Robert J. Cottrell, and including writings from advocates and opponents of gun control. If you're interested, look it up.

The Big E| 6.29.10 @ 4:53PM

- - Its militia preservation purpose is further made clear by the text of one of its original draft, which went on to say, "but no persons religiously scrupled against bearing Arms shall be required to do so." - -

So in other words, the 2nd Amendment means what you say it means because of the way it MIGHT have read, but didn't. Has it not occurred to you that the FACT the language you cited was OMITTED is significant because it shows the principles embodied by that language were NOT the principles the Founders intended to embody in the 2nd Amendment?

Jared Ford| 6.29.10 @ 6:44PM

Wow, big suprise, a leftist is giving a non-constructionist reading to the 2nd Amendment...

But if that's a problem, why should we care any less about this conservative effort to destroy the original intent of the 2nd Amendment- to prohibit only the federal government, and not the states, from regulating/prohibiting arms?

Conservatives really are missing the point on this one.

Nick| 6.29.10 @ 7:01PM

Mr. Jared,

If the Second Article of Amendment meant to prohibit only the federal government from "regulating/prohibiting arms," why didn't the Framers word it the same as the First, i.e. "Congress shall make no law [...]?"

Nick| 6.29.10 @ 7:19PM

Oops! I meant: Mr. Ford.

Jared ford| 6.29.10 @ 8:06PM

No worries!

For the same reason that none of the Amendments other than the 1A do. It was a sort of introduction. I discussed this in more detail below.

Radegunda| 6.30.10 @ 10:50PM

The first clause is not a restrictive clause; it does not say that "the right of the people to keep and bear arms" applies only within a "well-regulated [state] militia."

The amendment posits that "the people" (not their governments) have a right to keep and bear arms, and stipulates that this right "shall not be infringed." The language of the main clause is very clear. The introductory clause puts no restrictions on it.

publius| 7.1.10 @ 1:27PM

Antagonists of the Bill of Rights and specifically the Second Amendment, glom on to purposely created myths in their attempts to undermine it. Take, for example: "A well regulated militia", in 1787 we know from historical research, the Founders meant by 'militia' the "whole body of the people". And when they said "well regulated", we know from the same research they meant 'well trained'. And of course when they said 'state' as in "necessary to a free state", they meant the nation. The rest of the Amendment is self-explanitory, at least to a common sense person. As we already know the Bill of Rights refers to individual rights. George Mason and Patrick Henry (as well as others) would not support the ratification of the Constitution without the addition of a Bill of (individual) Rights.

James Madison argued against a Bill of Rights on the basis that a Bill of Rights would assist evil doers, like RCV, in claiming at a later date that because a particular claimed right wasn't in the Bill of Rights, the Founders must not have considered it a right at all. In fact, as the 10th Amendment states, all rights not specifically enumerated to the Central (Federal) Government are reserved to the states or the people.

Claiming that the individual states have a right to regulate firearms, might have some merit if leftists hadn't previously purposely bastardized the 14th Amendment to essentially undermine 'self-government', the cornerstone upon which our Republic was conceived. Yes, it was leftists in their zeal to usurp states rights that has come back to bite them in the ass.

Jared Ford| 7.1.10 @ 2:35PM

So you're basically admitting that this case is an offense to our constitutional system, but you'll take it because liberals have been offending that system for years now, and this is a right that you like.

publius| 7.1.10 @ 10:13PM

Until the next civil war sorts things out, we'll have to live with it.

Jared Ford| 7.1.10 @ 10:56PM

That's what I thought.

Naturally we should all just ignore our constitutional order and wait for a bloody war to take care of things, rather than fixing them before it ever comes to that.

Jared Ford| 6.29.10 @ 6:54PM

Yes , Melvin, it does seem awfully odd. The Courts never should have gotten this issue wrong in the first place, but they did. Fortunately, they fixed the situation two years ago in Heller.

Now they've gotten it wrong all over again, by extending the 2nd Amendment to the states, which was never intended by the founding fathers when they ratified the Bill of Rights.

Hence the reason that any true champion of the Framers' ideals should be wary of this decision.

Keith Bergstresser| 6.29.10 @ 8:35PM

Anyone who wonders why people like Mr. Ford and I disagree with the ruling should read the part of the Constitution that the pocket versions leave out. There is a preamble to the Bill of Rights that states that the amendments applied to the federal government and then to make it stick, they started the first amendment with the opening of "Congress shall make no law..."

Why are the amendments only binding on the federal government? Because the States have their own constitutions that bind them. The Constitution is not the supreme law that rules the States and federal enclaves. It is only supreme law in regards to the federal enclaves such as D.C., forts, magazines, navy shipyards, etc.

Just because the Supreme Court got it wrong when they incorporated the first, fourth, and fifth amendments, doesn't mean we give them a pass when they get this one wrong.

Jared Ford| 6.29.10 @ 8:50PM

Well said, Mr. Bergstresser!

Mark| 7.1.10 @ 1:40PM

Oh, man, is what you are arguing dangerous! You want my rights to be removed at the whim of the states.

Jared Ford| 7.1.10 @ 2:32PM

Actually, he and I just want the states to retain their autonomy, as they are supposed to under the constitution. We don't want the federal government overstepping its constitutional bounds to enforce a right on our state because you choose to live in a state that won't respect yours.

And saying that it's "dangerous" is pretty much talking out of your rear, because the country existed just fine under this kind of stystem for 120+ years (or at least until the Civil War, which some consider the end of true federalism in the US). In fact, one could argue that things have only gotten worse since the federal government started reading extra powers into the constitution and forcing everything onto the states. Which is essentially what you're in favor of here, but just because it's a right you happen to like.

Nick| 7.1.10 @ 2:19PM

Mr. Bergstresser

"The Constitution is not the supreme law that rules the States [...]."

Then why does Article I, Section 10, list all the powers prohibited to the several States? What about Article IV?

Article VI clearly states that the U.S. Constitution is the "supreme Law of the Land."

Jared Ford| 7.1.10 @ 2:27PM

It's only the supreme law of the land in manners that it has the constitutional power to legislate/regulate.

DaveS| 6.30.10 @ 12:31PM

You're right. The obvious is not obvious to the elite, the snobby and the seditionists. Makes you wonder, but the Court had to take the case. In light of Heller, I'd ask, how did the district and appeals courts uphold the Chicago law? Are those courts also hack (like the 9th appeals court on the west coast?)

David Madsen| 6.30.10 @ 3:26PM

My understanding is that the lower court asked the Supreme Court for clarification because of their ruling in Heller. The Supreme court did not actually rule on the Chicago gun ban directly. The lower court will now take the SCOTUS decision and make its own decision on the Chicago Gun Ban, which will most certainly be ruled unconstitutional.

DaveS| 6.30.10 @ 7:14PM

Perhaps, and maybe deference or timidity reigned. Whatever, the die was cast with Heller and everyone knew then that a challenge in the states would succeed. Gee, DC led on something in my lifetime.

rhurt| 7.3.10 @ 11:45PM

Be careful for what you wish for. DC has already put us in the deepest of debt, and seeks to take away our right to free speech via Kagan's nomination to the Supreme Court. I'm grateful that we can still keep some small part of our rights.

August P. Hinton Sr.| 7.1.10 @ 5:42PM

If the so called supreme judges did not wish to amend the amendments in order to satisfy their personal agendas, they would never have to review them. What is said is said in a way that has been understood and accepted for years. No need to try and put a new twist on it we believe the founders said it and meant it the way it the way they said it!

James Washburne| 7.1.10 @ 5:51PM

I disgree- there were lots of people like Daley here, and after the revolution they went back to England. Only about a third were patriots and a third loyalists. Too bad we can't send people like Daley somewhere after a victory.

Bill Hussein O'Stalin| 6.29.10 @ 7:39AM

Justice Stevens is one of the stupidest men alive, respected only for his liberalism, not any intelligence. Kagan will do well as his replacement. She hates America and the Constitution also. As well as the military. She's a perfect liberal.

darcy| 6.29.10 @ 2:40PM

What drives Kagan is her commitment to homosexual activism. She intends to destroy our First Amendment right of freedom of religion -- it is incompatible with her key agenda.

She must be opposed, loudly, consistently, and intensely. Her appointment on the court spells death to American freedom. It spells death to stable families, nurturing traditional conservative values grounded in objective truth.

Her agenda is EVIL to the core. It's past time to play nice with these people who intend to destroy our way of life.
http://www.massresistance.org/.....index.html

GavInTucson| 6.30.10 @ 2:20AM

Simply not going to happen. Senate confirmation in these proceedings is a farce at best. The appointees are given softball questions, and they respond with whatever they think the Senate wants to hear.

Case in point... in Sotomeyer's (sp) confirmation hearing, she stated that the right to bear arms is an individual right. In her descent regarding this court decision, she stated the exact opposite. The whole thing's a joke, in my humble opinion.

darcy| 6.30.10 @ 2:39PM

There's no spine on our side.

In contrast, look at the treatment of Clarence Thomas and Robert Bork. The Left, being the evil thugs that they are, the ends justifies the means mentality that drives their fanatic efforts to transform America in a godless utopian "paradise." They act in unison, relentlessly, to achieve vision, and have the active support of a democrat-controlled media.

Meanwhile, we sit back at bemoan our sorry situation, throw our hands up and let them rape us.

Then we deserve what we get. And THEY know we're "nice" and won't take them on, that we play by different rules. The aggressor always has the advantage. Just roll over and play dead. It's over, huh?

darcy| 6.30.10 @ 2:41PM

Too many typos; too upset to properly edit.

Wayne| 7.1.10 @ 12:37PM

It has always stunned me that even the most Conservative websites ignored the fact that Sototraitor was an important member of La ReConquista and amongst those dedicated to moving the Border back at least as far as the Louisiana Purchase - and maybe even going as far as promoting the removal of Caucasians from the Continent.

DaveS| 6.30.10 @ 7:20PM

She's going to continue spending her life paying men back for a lifetime of rejection.

Alan| 7.4.10 @ 4:07PM

I think the terms "liberal" and "conservative" are used far too frequently, especially since people define these words in often conflicting manners. IMO, Democrats and Republicans are more alike than different, and the two-party system is a misnomer, since they basically have a monopoly when it comes to elections. We still do not directly elect our officials; the electoral college remains. And we the people are no longer the constituents. Instead, corporations not only have 14th amendment rights--which are reserved by our Constitution for individual human beings [ know as We the People]-- but they also have their own special laws protecting them, which we do not possess. Corps. also have almost limitless resources, and your beloved Supreme Court ruled to let them use that massive wealth without reserve to further increase their own power and the consolidation of wealth into fewer hands. Thankfully, that decision has been slightly weakened.
However, 10% of our population controls more wealth than the bottom 90%! We should be banding together against this threat, instead of arguing over this very unconstitutional Court's ruling on the second amendment. I consider myself a liberal, but I fully support the right to own a gun, and to defend oneself. But I also don't like the fact that 12-year old gang kids have assault riffles, either. We use to fight like men, with our hands, and their was some honor, but no more..
Common sense, people-it needs to be more common, and We the People need to restore the CommonWeatlth. We need to stop living in little bubbles and go outside and meet our neighboors. In one way, we're more connected to the world than ever, yet in another sense we've never been more isolated.

George S| 6.29.10 @ 7:51AM

The 'due process' argument to uphold the Second Amendment is not a very good argument to use as precedent. To see why, compare the First and Fifth Amendments. The Fifth states that neither life, liberty nor property shall be deprived without due process; it does not state congress shall make no law depriving life, liberty nor property. The First Amendment does state "congress shall make no law" with regard to speech, establishment and practice of religion, the press and petitioning government. The difference is that due process cannot be applied to free speech, et al, because those are fundamental freedoms not therefore not subject to a process to determine if those rights can be violated. The Fifth, on the other hand, recognizes that freedom can be taken away (or else jails would be unconstitutional) and property, too, can be taken if it is essential for the public good. Since laws are allowed to take life and property, due process must be applied before the state can act on those laws with respect to the individual. For due process to apply, there must first be a law.

The Second Amendment neither states "Congress shall make no laws" abridging the RIGHT to keep and bear arms nor subject to any due process. In other words, it is a fundamental freedom not subject to due process because due process must be preceded by law. In this case, to open up the Second Amendment's incorporation into the due process clause of the 14 Amendment, the state then can deny the right to keep and bear arms as long as they give you due process (i.e., filling out a permit application, having it reviewed and then denied based on points of law). All it would take is for a future court to attach the due process argument to a particular state's law, and determine that the law and the process to obtain a gun permit did not deny due process. But if the Second Amendment is allowed to stand on its own words, then the Court need not look to the 14 Amendment but instead apply the clear language of the Constitution. The trouble with the legal profession is that they get into the words and not reading what they actually say. The Bill of Rights cannot be clearer and the Second Amendment leaves no wiggle room for applying due process or writing laws against a fundamental freedom to keep and bear arms.

Melvin| 6.29.10 @ 8:28AM

George, my question is, why do we have to revisit this constantly?
Like you said, "he Bill of Rights cannot be clearer and the Second Amendment leaves no wiggle room for applying due process or writing laws against a fundamental freedom to keep and bear
arms."
For Heaven sake what would have happened if the reverse would have happened and Chicago's gun ban was upheld?
Firearm registration and confiscation because the Surprem Court nullified the 2nd Amend.

George S| 6.29.10 @ 3:08PM

Melvin, I think the reason the SA is revisited is because the wordsmiths have been successful at trying to hide the punctuation marks the way a magician hides the rabbit.

The clauses in the Constitution are separated by semi colons; that is the correct grammatical usage. The First Amendment, for example, has three clauses: establishing a religion (comma) or prohibiting the free exercise thereof (semicolon) freedom of speech, or the press (both are speech and therefore one clause); or right to assemble, and to petition government. All three clauses share a common thread and are distinct from each other but the commas within the clauses tie similar concepts together through the use of conjunctions.

The SA is not separated by semi colons, but of commas WITHOUT conjunctions -- meaning the phrase "A well regulated militia, being necessary for a free state, ..." is an introductory clause which leads into "... the right of the people to keep and bear Arms, shall not be infringed." The comma between 'Arms' and 'shall' clarifies the right to keep and bear arms are one in the same, for without the comma it would mean only bearing arms is not to be infringed. If there were semi colons in the SA, the entire meaning would change if the introductory clauses remained and would lend credence to the argument that a militia and or free state clause denotes a group right than an individual one. What sense would it make to state in law that a militia is necessary for a free state unless it is followed by the punch line? Can only do that with commas without conjunctions.

The wordsmiths try to tie the introductory clauses as force of law, i.e., pretending that they are semi colons instead of commas, necessitating that the latter follow the former and vice versa. In other words a merry-go-round that has no logical solution. Today put a stop to that. By a thread.

I, too, shudder to think if that one vote went the other way.

Jared Ford| 6.29.10 @ 7:06PM

Very well written, but none of this has anything to do with THIS case. The individual right to bear arms (and thus the debate over the text of the Amendment, which you discuss here) was settled in Heller, thankfully, in favor of the right to bear arms.

This case deals with "incorporation" of the 2nd Amendment so that the STATES cannot regulate/prohibit arms. In other words it's conservatives using 14th Amendment "substantive" due process to apply the Bill of Rights to state governments, which was never the intent of the founding fathers.

In other words, it's just the conservative court's turn to jump on the "incorporation" bandwagon in order to read the Constitution to their own liking, as they and liberals have both repeatedly done over and over since the 1890s.

Jared Ford| 6.29.10 @ 7:12PM

This is a misunderstanding of the decision. The issue of "due process" in this case doesn't deal with the application of due process to regulate gun ownership; it has to do with the Supreme Court once again (this time led by conservatives) using 14th Amendment to apply the Bill of Rights to state governments, which was never the intent of the founders with the Bill of Rights.

I can't repeat this enough: this case was NOT about the 2nd Amendment right of an individual to own a gun. That issue was decided (correctly) by the Court in Heller, when it held that the federal government could not enact such restrictions.

This case was about the 2nd Amendment being extended to prohibit state governments from enacting such restrictions. And it takes an absurd reading of the Constitution, as well as an extraordinary leap of logic, to argue that any of the Bill of Rights, including the Second Amendment, were also intended to restrict the state governments.

Not that that has ever stopped liberals or conservatives on the Court from reading in any right they want against state governments. So much for our Constitution and our federalist system!

Anthony| 6.29.10 @ 10:47AM

George S. A very cogent discussion, however, I think Justice Thomas had it right, which dovetails with your concerns over "due process" and the ability to abridge freedoms as long as "Due Process" is addressed.
Justice Thomas speaks of the Privileges of citizenship that cannot be abridged by the States. In essence, he is saying the 2nd Amendment says what it says, and no State can fudge around the edges with a Due Process watering down of the language.

Jared Ford| 6.30.10 @ 4:05AM

Anthony, this is really a huge misunderstanding of the Court's use of due process. Please see my discussion of this issue above, if you are interested..

Old Soldier| 6.29.10 @ 7:56AM

Why is it so hard for politicians and judges to read and understand the words of the Constitution? How is it that a fact known by every school child is a mystery to Law School Alumni?

For some reason the judges really really like the 14th Amendment - it's wordy and vague and subject to all kinds of sideways lawyerly interpretations.

The earlier plainly worded Bill of Rights, on the other hand, is disregarded. When has the Court ever used the 9th or 10th Amendment to knock down a bad federal law? Certainly plenty of opportunities. Why can't the 1st and 2nd stand on their own?

C Carrington| 6.29.10 @ 12:00PM

Old Soldier,

It is not difficult for them to read and understand what the words of the constitution say. That’s the problem! They don’t like what the words say, nor do they agree with the freedoms we enjoy, as this gives us as free people too much power and independence, which is contrary to their fundamental beliefs about how society should be ordered.

The modern liberal or progressive is a person of rabid and tyrannical mind set… They do not in any way care what you think or believe, they simply must control and subdue you, and this is done progressively, step by step….slicing, dividing and conquering small parts of the whole society bit by bit. In time the whole of society will have no rights whatsoever, save those subject to the jurisdiction of their dictates and whims.

Yesterday, a right self-evident to most free men for well over 7500 years… the right to bear an arm or weapon in defense of your very own life… this was nearly stripped and separated from you by 4 justices who truly believe that you have no right to possess or use a tool to defend your life with, that laws could be enacted that prohibit you from self preservation in a violent society.

darcy| 6.29.10 @ 2:44PM

You see with great clarity, C Carrington, the struggle of our times. Keep up the fight.

Jared Ford| 6.29.10 @ 7:24PM

If I may, s/he sees with great clarity the wording of the Amendment, but not (like most) what this case was really about.

Jared Ford| 6.29.10 @ 7:23PM

No, a self-evident right was not "almost stripped" yesterday. The right to bear arms was affirmed two years ago in Heller. The federal government may not restrict the right to bear arms.

This decision dealt with the application of the 2nd Amendment to state governments/laws. But the Bill of Rights (including the 2A) was NEVER intended to be applied to states. It was intended by the founders to be only a restriction on the federal government. So, had the decision come out correctly, the federal government would still not be able to regulate arms (see, again, Heller), and states (such as Illinois) would still be able to decide this issue by themselves, as the founders intended, and has always been the case. Again, nothing would have been "stripped" from us, and instead we wouldn't have the Court (in this case led by conservatives) continuing to make up laws as they see fit and infrining on the rights of the states.

Flint| 6.30.10 @ 4:42PM

The case was indeed about losing our right to bear arms. The agency was in question. We had the right under the federal government, but not so under the lesser governments. No right would exist, if it is not universal.

Jared Ford| 6.30.10 @ 5:05PM

This doesn't make any sense. If the Court had rightfully decided that the 2nd Amendment (like the entire BOR), does not apply to states, then we would find ourselves in the position that the founders intended- with the federal government keeping its hands off our guns (via Heller), and the states regulating (or not regulating) guns in line with their own constitutions. This decision, with the federal government now enforcing another right on states that it has no right to enforce, was no different from the federal power-grabs that liberals champion.

Do you really think that the federal government should be enforcing on the states every "right" that it believes in, in order to make that right "universal"? That's contrary to our entire federal, constitutional system.

Radegunda| 6.30.10 @ 10:58PM

So you would be cool with various states also taking away your First Amendment rights and your Fifth Amendment rights--anything they want to take away? So the Bill or Rights was not really meant to protect certain fundamental liberties for every citizen, but only to put a restriction on what level of government could take away those rights? It really makes the whole thing rather pointless, doesn't it?

Jared Ford| 7.1.10 @ 1:47AM

No I would not be "cool" with that, just like I wouldn't be cool with the US government doing such a thing. But that's why I choose to live in a state that respects those rights, much like you and I choose to live in the US because of the rights it respects.

You are absolutely correct when you suggest: "So the Bill or Rights was not really meant to protect certain fundamental liberties for every citizen, but only to put a restriction on what level of government could take away those rights...."

This really is US constitutional history, actually. The BOR was/is a limit on what the federal government may do, not what the states may do. States are limited by their own constitutions and laws, as well as certain provisions of the US Constitution, but not by the BOR.

Of course, many argue that the 14th Amendment has since "incorported" the Bill of Rights against the state, but that's another (very controversial, in my opinion) issue. And actually, that was the issue at hand in McDonald- whether the 14th Amendment "incorporated" the 2nd Amendment against the states.

It's quite amazing how very few people realize this, and think McDonald was instead a case regarding what the 2nd Amendment actually says, etc.

Does it make it all pointless? Hardly. The federal government is still restricted by the BOR, as originally intended by the founders, limiting our limited federal government while leaving states to their own, autonamous rule.

What actually renders our federalist system pointless are decisions like this, which basically take restrictions on the FEDERAL government and then apply them to the STATES, despite the federal government lacking the power to do so, and thus giving the (supposedly autonamous) states less and less power.

Mark| 7.1.10 @ 1:50PM

Big deal! Your state respects your rights thus far. It almost makes me pray that your state takes away your rights very soon. You see I live in Chicago so I know what it is to have my rights stripped from me in my lifelong home.

Jared Ford| 7.1.10 @ 2:26PM

This is centralization advocacy at its finest. It's what liberals are known for. You want a certain right, and instead of getting it from your state (or moving to one that respects that right), you advocate the federal governement overstepping its constitutional bounds to give it to you. It's destructive to our entire federalist constitutional system. Sorry to see so many people like you completely disregard our Constitution. But who cares as long as you get what you want, right?

Alan| 7.4.10 @ 4:34PM

I agree with your point whole-heartedly, though I dislike the use of the words "liberal" or "conservative" as people interpret the meanings of these words differently.
But what is this really? True democracy, in the strictest of terms, is a terrible thing: it represents the will of the masses to subjugate that of the individual. Most people say we are a democracy, but they mean something other than what I just described. However, it should be noted that our Founders established a Republic, in which the people were to retain supreme power, and the Constituiton was the Charter of our Republic, which guaranteed individual rights from the persecution of the "ignorant masses." Every person should have the right to defend oneself, but perhaps our screening of people to buy, say, assault riffles, should be a bit stricter. Because I don't like the fact that some young punk can get away with all types of crime, and has no honor to settle a matter like a person of honor, but instead is packing heat. I don't like 12 year olds having 45s, or any type of pistol or assault riffle. This is not a black and white matter, but like all of life is a grey area. What we need is common sense. Neither the Federal nor State government should have the ability to ban firearms completely. But States should have the right, IMO, to not sell firearms to minors, insane people, or crimials.

Jared Ford| 6.29.10 @ 7:18PM

Old Soldier, I have no idea why it's so hard for some people. But really, the wording of the 2nd Amendment was not at issue here; that was settled (very correctly) in Heller. The wording and meaning of the 2nd Amendment stands as applied to the FEDERAL government.

This case, however, dealt with the issue of the application of the 2nd Amendment to state governments/laws. And the 2nd Amendment (nor any of the Bill of Rights) was never intended to apply to the States. Unfortunately, the conservatives on the Court have now decided to do what liberals have been doing for so long, and make the Constitution say whatever they want it to.

Old Soldier| 6.30.10 @ 7:24AM

You are right the second Amendment was never intended to apply to the States. It was intended to apply to the PEOPLE.

Jared Ford| 6.30.10 @ 4:15PM

This would be a good one for Craig Goodrich to look at...

Of course it was intended to apply to the people. That's a non-issue (see Heller). The question now is, AGAINST whom does it apply to the people?

Heller rightly made clear that it applied against the federal government. McDonald wrongly held that it applied against state governments.

Craig Goodrich | 7.2.10 @ 12:16AM

Now look. If you are fighting a battle against the whole idea that the 14th intended to apply "the traditional rights of Englishmen" -- as [partially] enumerated in the BoR -- then the legislative history, particularly the CRA 1866 debates, speak against the point. It's evident that many legislators regarded the BoR as fundamental.

But in any case, as I said in a comment that just got eaten, it appears that our agreements and disagreements (not to mention hairsplitting) are sufficiently subtle that cybernetic communication no longer suffices. This issue needs to be pursued over beer. Click on the link, find my email, and let me know when you'll be somewhere near Indianapolis.

Over and out.

Jared Ford| 7.2.10 @ 3:08AM

Well, I certainly don't deny that "many legislators regarded the BoR as fundamental" in those debates. Then again, as I said earlier, I also believe that many legislators (and most of the public, as well as the state governments), didn't really agree with that position, or at least didn't understand it to be so, especially when it came to the 14th Amendment (as opposed to CRA 1866).

Really, the most basic question here regards what the "privileges or immunities" clause means. In my firm opinon, while one can piecemeal various congressional statements, etc. to prove that the BOR was "incorporated" via the 14th Amendment, such a dramatic overhall of our constitutional system needs a lot more than that. Too much indicates that very few people (at least outside of the few that inserted this particular clause into the Amendment) understood this clause to be the great constitutional-shift that many now insist it is.

But certaintly, we could split hairs over this indefintely, as others have done and will continue to do. Thus it probably makes sense to end our disagreements (as well as our agreements) here. But really, it's been a real pleasure to have this kind of discussion with an articulate and logical person such as yourself, who not only truly understands what THIS particular SC case is about, but who also has a very educated grasp of our political/legal system and its history.

It's actually funny that you should mention grabbing a beer in Indianapolis, because I'll be very close to Indianapolis as of tomorrow night, for the holiday weekend (and having a beer, or perhaps a few...) . Unfortunately, I've planned to be with my family that whole time, and I can't skip out on them. Maybe next time?

But again, it's been a real pleasure to talk with you, Mr. Goodrich. All the best to you!

Craig Goodrich| 7.2.10 @ 6:46PM

Likewise, Mr. Ford. At your convenience; first pitcher is on me.

artin j smith| 6.29.10 @ 8:05AM

This SCOTUS decsion sheds again light on the reality in this country: One: SCOTUS is made up of lawyers representing political points of view and two; Elections matter.

Thus, for those who are not satisfied with your choices in November, your vote or lack of represents directly or indirectly an opposition or endorsement of BHO and the LEFY agenda. Not voting in this election and 2012 for those who truly want to oppose BHO et al. is criminal on a moral level. 5-4 that is the nature of our court. It is that close. Again if you believe in the constitution aand the bill of rights at the bare minimum vote in November even if you have to hold your nose AGAINST ANY DEMOCRAT.

Jared Ford| 6.29.10 @ 8:09PM

And even though the conservatives on the court have again shown, with this decision, that they too could care less about the constitution (aka their use of "incorporation" to read the Constitution to say what they want it to say, and apply to states), we should vote for conservatives instead of liberals? I don't think so.

Vote libertarian!

Louis Jenkins| 6.29.10 @ 8:32AM

"...our nation's being under the "rule of law" is a tenuous situation at best. Should even one of this Court's "conservatives" be replaced by a "liberal" judge, America could become a vastly different place..."

It's a tenuous line being held by the 5 supremes. We've won this time, but this decision sets up the case to be argued again, after a 5th liberal judge is appointed. Possibly the five will hang on to their seats until Obumer is a bad dream, but one could inadvertently die while holding his seat. Let's make sure that doesn't happen.

Jared Williams| 6.29.10 @ 8:04PM

Conservatives might have won today, but those in favor of our Constitutional order didn't.

JP| 6.29.10 @ 8:56AM

Our Liberal Masters are not judges by any constitutional sense of the word; what they really are are moral philosophers. Or better yet, they are philosopher kings.

Being a high court judge used to be a place where judges at the very least humbeled themselves before the laws. They job did entail believing the laws were right, or even just. Their job was to make sure the laws were constitutional. That was it. End of story.

Jared Ford| 6.29.10 @ 8:03PM

And now the conservatives on the court, at least with today's decision, have jumped on the philosopher-king train. Or jumped BACK on the train, I should say, as incorporation was essentielly their brain-child.

Unfortunately, no one wants to mention that.

Gill O’Teen ✝✡| 6.29.10 @ 9:58AM

As I recall “Soyta-mywhore” was a staunch defender of OUR SECOND AMENDMENT RIGHTS during her sin-8 hearings last year. She showed her true colors by her vote against all US citizens yesterday. By this vote she proved that sin-8-tors should vote against Keggun, reminds me of Our Gang’s Spanky, based on her ban of Military Recruiters at hah-vahd and her really troubling comments about FREE SPEECH. In both cases, it is enough that the won who believes OUR CONSTITUTION is a flawed document nominated them to the highest court for the republy-kons to filibuster Spanky as they should have saint sonya. We do not need another kommie obummerite in any position of authority over Americans. Any republy-kon with stones should be calling for the impeachment of those 4 libs on the court who violated their oath of office by voting against a CONSTITUTIONally protected right. THE FOUNDERS thought this right was so important that they gave it its own amendment and it’s language is simple enough that even a Detroit public school fifth grader can understand it: “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.” Grammatically speaking, this sentence leads with a dependent clause which is followed by an independent clause. The Founders were skilled in the use of the English language and it is no accident that the portion of this right pertaining to the militia grammatically depends on a right of THE PEOPLE. What is so difficult to understand about the words “people”, “not” and “infringed”? On another note, I read on Drudge this morning that little dick daley and his gang are right to work looking for a means of circumventing this ruling in order to deny Chicago’s citizens their CONSTITUTIONAL RIGHTS. I would go so far as to propose that since gum’mint can invent a right to healthcare and force us to pay for it, it should also require that we all carry revolvers on our hips just like back in the Wild West. And if it’s important that first graders have access to free condoms, that same first grader should have access to free weapons, training and ammo.
Gill O’Teen ✝✡
gill.Oteen07041776@gmail.com
"...to disarm the people - that was the best and most effectual way to enslave them." - George Mason
http://www.godseesyou.com/2nd_.....uotes.html
Only 936 days to go.

Jared Ford| 6.30.10 @ 4:15AM

Once again, THIS case had nothing to do with the constitutional right(s) of US citizens to bear arms. That issue was decided two years ago in Heller; the US government may not, due to the 2nd Amendment, prohibit persons from doing so.

This case instead dealt with whether the 2nd Amendment restricts individual states and local governments from regulating arms, which was clearly not the intent of the founders with the 2nd Amendment. Your appeal to constitutional rights with this centralizational, big-government grab of rights makes you no better than the liberals who do the same. That's all.

Petronius| 6.29.10 @ 10:30AM

To own any gun in Illinois one must have a Firearm Owners I.D. card. All Daley has to do is call the Secretary of State in Springfield and have him refuse any application from Cooke Co. They probably do this anyway.
The only way assaults on Our Rights will cease is when self serving judges get impeached, tried, convicted, defrocked, and disbarred for wantonly breaking their Constitutional Oaths.

Ken (Old Texican)| 6.29.10 @ 10:34AM

Petronius,
What is the IL law concerning we Texans driving through..... or flying over...but landing for gas...armed to the teeth as usual?
(smile)

Gill O’Teen ✝✡| 6.29.10 @ 11:30AM

Ken, when I took my concealed carry class in a state neighboring Illinois, my NRA instructor recommended that when driving through obummer's adopted home state, my unloaded weapon should be in a locked case in a different compartment of the vehicle, such as the backseat or trunk, and its ammo must be stored separately. Kinda defeats the whole purpose of being armed, doesn’t it? I think the NRA has a listing of the various state infringements on this CONSTITUTIONAL RIGHT.
Gill O’Teen ✝✡
gill.Oteen07041776@gmail.com
"When a strong man, fully armed, guards his house, his possessions are safe." - Luke 11:21, New International Version (©1984)
Only 936 days to go.

Al Adab| 6.29.10 @ 1:20PM

Ken, Gill:

5-4 absolutely unbelievable. What is there to debate in the clear meaning? Granted the Constitution limits only Congress but since the Left read the 14th to mandate states as well it applies to all. Of course when the Left gets a result they don't like, then they oppose.

Out here of course we, like Texans, carry in our cars and on our persons. The laws in many other states cause problems when we travel.

Jared Ford| 6.29.10 @ 6:28PM

"...but since the Left read the 14th to mandate states as well it applies to all. "

It does? Like the excessive bail/fines clause of the 8th Amendment, or the entire 7th Amendment? Should the Supreme Court next overturn all state civil cases (concerning matters over $20, of course!) that weren't decided by a jury? This is after all why the theory of total incorporation was abandoned in favor of selective incorporation...

Not that selective incorporation is any better; in fact it's probably worse. Now we have both liberals and conservatives cheering every time they like a particular incorporation (like you, for example, thrilled now that you can carry your guns wherever you want), and moaning every time they don't. Meanwhile, no one is left to challenge the basis (or lack thereof) of this asinine legal theory, while the rights of states and individuals are increasingly usurped by an ever-growing judiciary that makes laws and the Constitution out to be whatever it wants.

RCV| 6.29.10 @ 7:09PM

"Granted the Constitution limits only Congress but since the Left read the 14th to mandate states as well..."

The 14th Amendment states,: "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. "

"The Left" didn't apply these proscriptions on the states -- the 14th Amendment did.

Jared Ford| 6.29.10 @ 7:26PM

So then why isn't the 2nd Amendment also incorporated?

RCV| 6.29.10 @ 11:16PM

If Heller's interpretation is correct, it should be.

John Navratil| 6.29.10 @ 3:49PM

Ken (Old Texican),

Off topic, but ----

What do you fly? I keep a 210 at Hobby.

Ken (Old Texican)| 6.29.10 @ 7:14PM

John N.
I just sold our Bellanca super Viking. Dammit...I'm done. My polio came back to my right leg and my wife is too precious...to me...and thousands of kids she treats for me to play pretend.

I have owned five Bonanzas, but the Vike is the only small plane I trust with her life.
A 210 is great, but have you ever driven a Vike?
.....spoiled spoiled spoiled...grin.
We have been based at Lakeside (west Houston) for ten years.

John Navratil| 6.30.10 @ 11:13AM

Haven't had the Viking pleasure. Maybe one day.

Sorry to hear about your leg. But it sounds like you know when to quit. I'm not looking forward to that day, but I know it is inevitable.

Petronius| 6.29.10 @ 7:05PM

Ken
Don't go into Illinois with a loaded piece on your person or even cased and locked. There's no CCW for civilians or even commissioned full time police from out of state unless they are on the clock. But south of I 70, local authorities do as they please.

Jared Ford| 6.29.10 @ 7:29PM

So basically, state and local governments deciding matters of gun laws for themselves, without the interference of the federal government. Just as the founders intended with the 2nd Amendment!

Anthony| 6.29.10 @ 10:32AM

Kudos to Justice Thomas for his recognition under the 14th Amendment of the privileges of citizenship under the Constitution that cannot be abridged by the States.
Meanwhile, the intellectual dishonesty of the Left continues its assault on the Constitution and America itself.
Our freedoms continue to hang by one single vote. We need more than one election to rid us of the rot in Washington.

Jared Ford| 6.29.10 @ 6:33PM

And we should instead support the intellectual "honestly" of the conservative plurality, who have in the past challenged the incorporation of rights dear to the Left, but here embraced the incorporation of a right they happen to like? This case wasn't about individual liberty (Heller was); this case was about incorporation, and hence the further destruction of the Constitution and our country that you so hate.

That being said, I do at least appreciate the plurality's effort to limit further expansion of this ridiculous legal theory. And my hat goes off to Thomas for having the guts to challenge 130+ years of bad legal principle furthered by both liberals and conservatives.

fred edwards| 6.29.10 @ 10:52AM

I carry a gun because a cop is too heavy to carry.

Gill O’Teen ✝✡| 6.29.10 @ 11:47AM

Heh, heh, heh!
Gill O’Teen ✝✡
gill.Oteen07041776@gmail.com
"Jesus said, 'But now whoever has a purse or a bag, must take it and whoever does not have a sword must sell his cloak and buy one.'" - Luke 22:36
Only 936 days to go.

Big Leo| 6.29.10 @ 1:25PM

I used to keep a doberman in my boot, but whenever we passed a squirrel we had problems.

Ken (Old Texican)| 6.29.10 @ 10:56AM

Folks, thanks.
I have been quietly appreciating the article, and your conversations.

The decision handed down yesterday is in my mind the most important thing that has happened in the last few days...or perhaps 18 months.

It dwarfs the healthcare grab, as awful as that is. It dwarfs the nationalization of the financial industry and the auto industry, as awful as those are.
I do have to agree completely with the columnist, Mr. Kaminsky that the wrong argument was advanced, (the due-process clause), because a communist, (pardon the shorthand), congress can pass a new law...one day.

Fortunately, with States or cities passing new laws, in extremis the citizens can vote with their feet...as thousands have done.
Chicago is losing it's middle class in droves, and has been doing so for a long time.

No, I believe the decision yesterday at least postponed the day when Americans are forced into "self defense of life and liberty" mode by our own government/s.
It gave our country a breather.

It will allow us our "final right" to exist at least a little longer.
Hopefully we as a majority can take advantage of this "time out" to kick the communists, (again pardon the shorthand), into prison or disgrace where they belong through either the ballot box...or a national sit-down strike of the "private sector critical industries".
Again,
as Rush stated so eloquently yesterday: "Ladies and gentlemen, we are hanging by a thread."
God bless

Jared Ford| 6.29.10 @ 8:12PM

And that's how it should stay- people voting with their feet! The federal government may not restrict guns, states may do so (if their Constitution so allows, of course), and people can then choose in which state, city, etc. to reside.

We don't need today's Unconstitutional decision. We don't need the federal judicicary, in the tradition of their liberal opponents, reading law into the Constitution that doesn't exist- in this case, the application of 2nd Amendment rights to state governments.

Craig Goodrich| 6.30.10 @ 12:42PM

During the Civil Rights Act of 1866 (and later the 14th Amendment) debates, the single right mentioned as MOST IMPORTANT to protect for the freedmen of the South was the right to arms. Many Southern states had passed laws effectively banning the ownership of guns to blacks, allowing them to be terrorized while defenseless. I flatly do not understand your constant harping on the obvious fact that until the passage of the 14th Amendment, the guarantees of the Bill of Rights applied only to Federal activity.

What, exactly, do you think the 14th Amendment means if not the extension of Bill of Rights guarantees to the level of State (and municipal) government?

Jared Ford| 6.30.10 @ 4:09PM

My "constant harping" about this topic has to do with the fact that 95% of the people praising this decision apparently think that it was about interpreting the text of the second amendment, or something of that nature, rather than what it was really about- incorporation, and consequently, our federal structure. Even a cursory look at this particular discussion thread makes this apparent.

Have you read all of the 14th Amendment? Because even absent incorporation of the BOR, via DP or the P or I clause , it does quite a lot (e.g. guarantees citizenship, guarantees procedural due process to everyone, etc.).

It is without question that the 14th Amendment was ratified in large part to constitutionalize the Civil Rights Act of 1866 to prevent the Supreme Court from finding it unconstitutional. But the fact that the federal government wanted to prevent states from denying their citizens equal protection under their laws (e.g. equal rights in regards to arms) does in no way logically lead to the 14th Amendment extending the BOR to states. The wording of the CRA never suggested that. And now with the 14th Amendment, it's taken all kinds of "reading in" to the Constitution, by both liberals and conservatives, to apply the BOR to states.

Craig Goodrich| 6.30.10 @ 7:45PM

It would appear here that you seem to be taking the position expressed by the opinion of the majority in Slaughterhouse, whereas I (and Mr. Justice Thomas) support the dissenting opinion of Mr. Justice Bradley in that case, both as discussed on p. 6 fff of the Chicago opinion. Apparently your view is not widely shared by contemporary legal scholars, although admittedly I am somewhat uneasy at finding myself in agreement with some large number of lawyers.

As read, the CRA of 1866 gives strong support to the "equality of treatment" argument, raised by Chicago. Thomas is quite right that the "privileges" clause is appropriate here: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" -- since the 2nd Amendment clearly protects a "privilege or immunity" of a citizen of the US.

One cultural factor that is overlooked in the 'equality" argument is that at the time the 14th was passed, it was basically inconceivable that any State would abrogate the arms rights of its white citizens. If one had tried, say in the 1820s, it's a reasonable conjecture that the Supreme Court would have abrogated the law on the basis of the "guarantee a republican form of government" clause. Thanks to the pervasive ignorance and Political Correctness in American society, though, this is no longer true.

A thought experiment: suppose that in the Year of Our Lord 2011, simultaneously:

New York passed a state law requiring five years' imprisonment for Holocaust denial;

California passed a state law requiring the gas chamber for casting doubt on the Catastrophic CO2-driven Anthropogenic Global Warming Hypothesis;

and Alabama passed a law requiring life imprisonment for promoting "Witchcraft, or Wicca, or any other religious doctrine that fails to distinguish between the Creator and His Creation."

Now, what if anything, should be done about this, other than mass exodus from these states? The Bill of Rights has been regarded since the founding as a basic, minimal enumeration (10th Amendment notwithstanding) of the rights of American citizenship. And on the first two points, we have Canada (a "republican" form of government despite occasional lip service to the Queen) with similar laws, and on the third, in Scandinavia we have State Churches. So without some doctrine at least similar to "incorporation", there is no remedy at law. Perhaps there should not be, but the question needs to be addressed.

(Given the last decades in Canada, they might well be better off under direct personal rule by the Queen, who is a sensible and just person. Unfortunately all her children and grandchildren appear to be imbeciles.)
====

Congressional intent is discussed on p. 14 (as numbered) of the Chicago opinion.

The "equality of treatment" argument is pervasive in the dissent of Mr. Justice Stevens, and its rejection pervasive in the concurrence of Mr. Justice Scalia.

The text of the opinion is available at
http://www.supremecourt.gov/op.....8-1521.pdf

Jared Ford| 7.1.10 @ 3:18PM

I do generally take that position, though with some exception; just as I'm sure you side with the dissent in that case with some exception (such as its support of unenumerated rights). True, that doesn't put me on the side of the majority of legal scholars, but there are a good number on my side, and I really do think theirs is the most solid.

Most scholars in support of incorporation seem to rely on "piling up" as much piecemeal evidence as they can in order to prove that the BOR was incorporated. Those in the minority, however, seem to raise points and question such as, why was the discussion of this dramatic overhall of our constitutional system so sparse (in regards to both congress and the public)? Or what about Twitchell v. Commonwealth, 1868, in which the Supreme Court, following the ratification of the 14th Amendment, refused to extend federal BOR protection to a petitioner against his state? No one involved in that case ever even mentioned the 14th Amendment.

These are a just a few examples, of course, and it's a huge simplification of the matter (and it really is a discussion that could go on indefinitely, and probably will). Nonetheless, I believe that the best arguments on the matter reside with the anti-incorporationists. And though that certainly puts me at odds with the majority of legal scholars, I would point out that until recently a majority of legal scholars sided with the view (led in large part by the work of Law Professor Charles Fairman) that the ratifiers of the 14th Amendment truly intended to incorporate rights under the due process clause of that Amendment, and not its P or I clause. Thankfully that was eventually proven wrong, though it took many, many years. But it does give me hope.

As for the cultural factor you mention- that no state at the time of the 14th Amendment would abrogate the right(s) of whites to bear arms- this seems to me contradicted by your reference (below) to the fact that, in 1847, Virginia forbid the “sneaky” carrying of guns. And as is obvious, the US Supreme Court never overturned law.

And as for your thought experiment, though quite interesting, at least hypothetically, I’m not sure what it proves. Sure, it would be terrible if a state adopted those kind of laws. But absent a constitutional provision for the federal government to intervene, it has no right to. Of course, it would certainly need to be addressed. But it should be addressed through the democratic process, as the founders intended. We do have the Amendment process after all.

Craig Goodrich| 7.1.10 @ 7:06PM

OK, I'm with you through most of your post (though I am a strong advocate of reserved "unenumerated" rights; the only problem with them being the same as the problem with the traditional "unwritten" English Constitution: everything is just peachy until the culture changes).

Note again that the Virginia law didn't interfere with your "keep and bear" arms rights; it was imposition of a cultural preference (note that I don't say it was a good idea, merely that it was not regarded at the time as an abrogation of the right to arms). Obviously there is a continuum into danger here; a law saying that you can carry a handgun, but it must be tied to the far end of a ten-foot pole slung over your shoulder, would clearly be an infringement (fully worthy of the Chicago City Council).

Again [? it gets confusing reading these threads from both ends] your last paragraph doesn't quite make sense to me. "... absent a constitutional provision ..." "the Amendment process" -- but we agree (I think) that the legislative intent WAS to create just such a constitutional provision, specifically BY the Amendment process. What exactly am I failing to grasp here?

Jared Ford| 7.1.10 @ 11:03PM

I honestly don't think you're misunderstanding anythig in my last paragraph. It seemed like you were suggesting that, because a state could adopt some unreasonable measure (like those you gave examples of), there should be some method for the federal government to deal with that measure. All I was saying was that, absent some OTHER constitutional provision allowing the federal government to intervene, the Amendment process is what is available. That's all. My apologies for not wording it better.

MikeN| 6.29.10 @ 10:59AM

Perhaps this is the legal minutiae you avoid, but Thomas's opinion is at odds with Robert Bork.
In Tempting of America, he writes that the Privileges Clause is a dead letter, and should not be used.

Craig Goodrich| 6.30.10 @ 9:05PM

It is quite possible to believe simultaneously that Bork was treated with gross injustice by the Senate and that he was completely, totally, and dangerously wrong on a number of issues, particularly with respect to the Bill of Rights.

I suggest you read carefully Thomas' opinion, beginning on PDF page 67 at the link above, and judge for yourself. Like most of Thomas' opinions, it is carefully reasoned, whether one agrees or not.

David Tondreau | 6.29.10 @ 11:06AM

Maybe someone should remind Justice Breyer that there is no popular consensus on lifetime appointments for Supreme Court justices either. Although I agree with the lifetime appointment, Breyer and Kagan, by their own words, just may be the best justifications yet for term limits.

Sam| 6.29.10 @ 12:20PM

Okay so all of this is great. They got the decision right and finally, gun rights will be given the sanctity they deserve.

But this is only the beginning, folks. Don't get complacent! This is merely step one. I for one am a resident of CA and we still have an assault weapon ban in place, a "may issue" standard for concealed weapons permits, and a new proposal on the table to ban open carry.

So don't relax and tell me its over- we have a long way to go and the McDonald decision is just the foundation.

UpChuck.Liberals| 6.29.10 @ 6:36PM

You neglected to add our Liberal Masters wish to encumber us with registering our long guns. On open carry, I think it's flat out stupid to carry if the gun ain't loaded, might as well carry a brick.

Another citizen of the Peoples Republik of Kalifornia

Jared Ford| 6.29.10 @ 8:00PM

S/he also forget to mention that this decision is also an Unconstitutional power-grab by the federal government and infringement on state rights.

Sam| 6.30.10 @ 1:27PM

UpChuck,
Yeah I forgot about the long gun registration. But I personally won't complain if they require us to carry unloaded. As long as you have the magazines with you, it takes only a second to load a handgun.

Northern Rebel| 6.29.10 @ 1:13PM

RCV:

If you are going to be honest, (I doubt it) You will admit the real reason for the 2nd amendment.

It was devised to protect us from our own government.

PERIOD!

The founders came from a place that decided what class you were in, what religion you chose, etc.

The right to bear arms is the second right for this reason.

If Barak Obama decides to annoint himself king, and tell us we must worship under Rev. Wright, and we must toil for the greatness of his crown, the idea is, we have the weapons to kill him, overthrow his kingdom, and restore the Constitution to it's glory.

PERIOD!

If you don't realize that this is the reason for the 2nd amendment, then you sir, are a fool.

RCV| 6.29.10 @ 1:24PM

Unfortunately, Northern Rebel, I'm burdened by having spent much of my life reading and studying the history of the Revolution and the underlying founding documents of our country, including every single page of debate in the colonial legislatures on the Bill of Rights. Regardless of what their own views were on gun ownership and governmental tyranny, the reality is that the Second Amendment was wholly about preservation of the state militias and fear of federal standing armies. I can't "admit" something that years of research has proved to me isn't true.

Len| 6.29.10 @ 2:07PM

Yet, with all your "years of research", you provide not one citation, and make strange reference to colonial legislatures debating the Bill of Rights. Surely you are aware that the colonies had established their own governments and constitutions by the time there was debate on the Bill of Rights and were then states?
Regardless of state or federal law, one's right to defend oneself and determine the means necessary for that can never be legislated away.

Nick| 6.29.10 @ 3:43PM

RCV,

Whose history have you been reading, Howard Zinn's?

Article I, Section 8, of the U.S. Constitution gives Congress the power "[t]o provide for organizing, arming, and disciplining, the Militia [...]."

The only powers granted to the several States, regarding the militia, were appointing officers and training the militia according to the standards set by Congress. The Congress kept on "regulating" the militia, even after the Second Article of Amendment was adopted.

Are you claiming the Second Article of Amendment changed this clause of Section 8, RCV?

Also, as an aside, do you know the difference between the regular militia and the select militia?

"[...] including every single page of debate in the colonial legislatures on the Bill of Rights."

The 10 Articles of Amendment, listed in the Bill of Rights, were adopted in 1791. The colonies declared themselves "independent States" in 1776. How did the colonial legislatures debate the Bill of Rights?

The Second Article of Amendment clearly states the PEOPLE have the right to own and carry firearms. The preamble portion about the "well regulated militia" lists no right or power granted to, or retained by, the several States. Preambles have no force of law. And they are not exhaustive of the intents of the law.

The only judicial activism on display in the McDonald decision, is from the four stinking liberal justices who ignored the plain wording and original intent of the U.S. Constitution.

But, then again, liberals never care what the Constitution's written words actually mean. They just make it up, to fit their socialist worldview.

RCV| 6.29.10 @ 4:17PM

You're absolutely right that my reference to "colonial legislatures" was a slip-up. I obviously meant to refer to the newly-declared State Legislatures. As to the rest of points, I stand by them. I've written several extensive legal briefs with citations to the legislative debates, but if you're in fact interested in learning something about the debate over state vs. federal military power between the federalists and the anti-federalists at the time, and its relationship to the Second Amendment, a good place to start would be the Cottrell work cited above.
There is no question that many of our framers were firm advocates of an armed citizenry, and would have strongly resisted unreasonable legal restrictions on gun ownership. But that's not what the impetus for and intent of the Second Amendment was. A far stronger case could be made under the Ninth Amendment ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."), but conservatives don't like to do so because the Court has also grounded many of its privacy holdings (including Roe v. Wade) in that Amendment.

Nick| 6.29.10 @ 4:49PM

RCV,

Merely standing by your previous points, is not an argument. Why don't you try to address my specific questions and rebut them?

Conservatives have no aversion to the Ninth Article of Amendment, by the way. It is the way liberals have twisted its meaning, with emanating penumbras, leading to a nonexistent federal "right to privacy."

Rights of privacy are to be defined by the people of the several States, as stated in the Tenth Article of Amendment. Griswold and Roe took that right away from the people and the states.

Liberals are very undemocratic.

RCV| 6.29.10 @ 5:08PM

As your friends in the John Birch Society used to say, "This is a Republic, not a Democracy; Let's keep it that way." In Constitutional democracies, the majority can't always have their short-term way. We protect minorities, or try to, against the passions of the majority by guaranteeing certain inalienable rights. In the long run, if the People wish to amend the Constitution to abridge any guaranteed right, they can do so. But the laborious amendment process is deliberately meant to insure that the passion isn't fleeting. If there is a long-term consensus on banning abortion or birth control, or leaving that to the states, it can be corrected if the Court got it wrong. I don't happen to believe it did.

Nick| 6.29.10 @ 5:58PM

RCV,

Nice try at getting off the subject.

I guess this means that you have no rebuttal to my arguments, huh? Understandable.

The Second Article of Amendment was instituted because of the long history of British monarchs to disarm the populace, usually using the royal game laws. Have you read, in your lifetime of study, "To Keep and Bear Arms, The Origin of an Anglo-American Right" by Joyce Lee Malcolm, RCV?

Many of the several States enshrined the right to own and carry arms in their own constitutions, 11 years before the U.S. Constitution was written. Some of these constitutions stated that the people had the right to arms for their own self-protection.

There were numerous reasons for enacting the 2nd A. of A. It is still an individual right, as affirmed by the latest SCOTUS decision. The liberal justices, as they always do, chose to ignore the Constitution.

The Constitution does not confer rights, by the way. We are created with our rights, and they are gifts from God Almighty. An unborn baby has the same rights as you or I, the main right being the right to live.

RCV| 6.29.10 @ 7:17PM

Nick - I've read virtually every book and article published on the Second Amendment, but it was part of my consititutional law practice for 35 years. I'll repeat what I've said in these posts many times: my disagreements with the majority in Heller are historical. The motivation behind the Second Amendment was preservation of state militias. Did the majority of framers believe in the importance of gun ownership rights and in an armed citizenry? You bet. That is why they enshrined those rights in many of their state constituions. Could the federal government abolish those traditional rights of Englishmen? No, but a better case is made under the Ninth Amendment for that argument. The contemporary debates on the Second Amendment weren't about that subject. Were gun rights unlimited in the minds of framers? No. Almost to a person, their writings suggest belief that those rights, like rights of speech, were subject to reasonable time, place and manner restrictions by the State and local governments.

RCV| 6.29.10 @ 7:19PM

first sentence should read ",because it was part of my constitutional law practice...".

Nick| 6.29.10 @ 7:27PM

RCV,

So, you are claiming the Second Article of Amendment changed this clause of Section 8, namely Congress had the power to regulate the militia? Also, you believe preambles have the force of law?

And, again, do you know the difference between the regular and select militias?

Nick| 6.29.10 @ 7:40PM

RCV,

"I've read virtually every book [...]."

Does that mean no, you have not read the book?

RCV| 6.30.10 @ 12:30AM

Nick - I have in fact read Malcolm's well-written and informative "To Keep and Bear Arms". Its historical review of the English antecedents to American gun ownership rights are thorough and persuasive. Like many critics of the book, however, I found her assertion of colonial and state recognition of individual gun rights for personal use less persuasive. She only cites a Pennsylvania provision for a broad assertion, and her discussion of the Second Amendment debates in the various state legislatures is even thinner.
On others of your points, like Jefferson, I believe we are endowed by our creator with certain inalienable rights. Gun ownership, however, is not one I personally believe God had in mind. What we are discussing are human-enacted provisions in our Constitution. And no, I don't believe unborn babies have the same legal rights as you and I.

Nick| 6.30.10 @ 12:41PM

RCV,

Why won't you answer ALL of my questions?

Petronius| 6.29.10 @ 7:38PM

The "Right to Life" is gazetted in the Declaration of Independence. Not only is the Roe decision an affront to that but nobody who condones the butchery of an innocent unborn child for mere convenience and the facilitation of sexual hedonism has any claim to be civilized.

JmsA| 6.29.10 @ 11:46PM

Thank you, Petronious, such needed to be said.

Thom| 6.29.10 @ 6:47PM

RCV, I don’t think you can square your views on the Second Amendment and the use of the phrase, “the right of the People shall not be infringed” and similar “people” references in the Federal Bill of Rights along with several State Bill of Rights having similar if not stronger rights specific to the Second Amendment. You have no Militia in effect if individuals don’t already have the weapons and basic skill sets. You don’t call up every able bodied male of age and hand him a weapon and tell him to go take care of business on short notice as was expected, practiced and the custom in the 16th century.

Further regarding legal briefs, please. There is a lawyer on each side of every argument before the law and one is always wrong and both get paid. For enough money most lawyers will advocate for the devil. Many will do it for free.

Al Adab| 6.29.10 @ 2:33PM

N R:
Compare the grievances listed in the Dec of Ind and compare to today's situation. The parallel is frightening.

darcy| 6.29.10 @ 2:54PM

The parallel is exact; what's more, we now have a statist-promoting press, acting as the propaganda arm of our big-government collectivists in DC. These are exceedingly dangerous times that call for concerted, determined, and unrelenting resistance -- and I mean DECADES of push-back!

Al Adab| 6.29.10 @ 3:28PM

Hello Darcy,

Long time. You are right the parallels are plain.

I asked you once before if you were the Darcy I know at G. I. didn't I?

darcy| 6.29.10 @ 3:37PM

And you probably remember, Al Adab, that I said I am not the darcy of G.I. However, it's quite possible that she and I share many of the same political views; mine have been incubating a bit longer than hers, though, as I note her relative youth. Nice talking to you again :)

Al Adab| 6.29.10 @ 3:43PM

That was my recollection. Good to hear from you again as well. I too am a bit senior to the "other" Darcy. Old enough to be her father actually.

Keep up the battle. If we lose the war of words, the alternative is terrifying to contemplate.

RCV| 6.29.10 @ 4:35PM

Let's see, here's the bulk of the Declaration's list of grievances against King George:
- "He has refused his assent to laws, the most wholesome and necessary for the public good." (i.e., he exercised a "pocket veto" over acts passed by Parliament.)
- "He has refused to pass laws for the accomodation of large districts of population, unless those peoples would relinquish their right to representation in the legislature ..."
- "He has dissolved representative houses repeatedly ...".
- "He has endeavored to prevent the population of these states [by] obstructing the .. naturalization of foreigners ... and refusing to encourage their migration hither." [I love that one - George wasn't making aliens citizens fast enough!
- "He has kept among us, in times of peace, standing armies..."
- "He has effected to render the military independent of and superior to civil power."
- "For depriving us, in many cases, of the benefits of trial by jury."
- "For quartering large bodies of armed troops among us."

I see how "the parallel is frightening"! Obama has been veteoing too many of Congress's enactments, has been dissolving the Congress, has been preventing aliens from entering our country and refusing to make them naturalized citizens fast enough, he hasn't exercised civilian control over the Army (hear that, General McCrystal), he's been denying the right of trial by jury in some cases (oh wait, that was George Bush), and we're all sick of those troops he's putting up in our houses.

Do you guys even stop and think before you write this stuff?

darcy| 6.29.10 @ 5:50PM

It matters not in the least that the particulars are not identical, the goal is the same. How could the particulars be identical in every point anyway? I know history repeats itself, and so do you. How could you seriously argue that because, for example, the many features of the Stamp Act of 1765 are not identical to the assaults on our freedoms today that therefore they were somehow more egregious limits to our freedoms than what we encounter today? as for example the central government REQUIRING us to purchase a given product, whether that be light-bulbs or health insurance.

If you can't recognize the noose tightening around the neck of your freedoms, well, you'll be happy to know that you're in the company of the nearly 20% of the population during colonial times who were happy as a lark to follow King George, many of whom decided to move back to jolly old England. We intend to stand and fight.

And you?

RCV| 6.29.10 @ 7:33PM

I'll tell you why the basic comparison is nonsense. Not only are the "particulars" not the same, but the basic premise of the complaints against King George is absent: we are not a colony, governed by an unelected moncarch. We get to choose our President, and we get to choose our representatives, in free and fair and open elections. We did that in 2008. Your candidates lost. Grow up and get over it.

Al Adab| 6.29.10 @ 8:57PM

RCV:

In defense of Darcy and myself,
Don't be so selective in your list. Try the army of agents to eat out our sustenance stuff. Or would you prefer me to list it all and quote directly.

I'll give you the election issue, but what about a government designed to protect the rights of the citizens becoming destructive of those ends? The conversation never ends, but at least admit to the legitimacy of the debate. After all isn't that the "Diversity" we are all to worship these days?

Len| 6.29.10 @ 6:18PM

Benefits of trial by jury...so people aren't thrown into prison without due process today? Not that I want to defend sex offenders, but try US vs. Comstock for one. If you really want I can name numerous persons confined on trumped up charges merely for offending those in power.

Ok, how about those militia groups denies their inalienable right to associate for the purpose of informing one another in regard to whatever they would choose, or associating to defend themselves from an unrestrained government? Nowhere in the US constitution is there any authority to outlaw the talk of revolution, or to gather for such purposes. If you believe otherwise show me that grant of power. When the government indeed steps in to quash those merely concerned about tyranny, then tyranny has already happened.

How about Obam's unconstitutional actions in regard to GM's shareholders?

How about his recalcitrance in defending our borders from what is in fact an invasion by those who bring violence to this country and siphon our wealth?

How about his aiding and abetting the mandate of healthcare for all. This despite the express limitations of the US constitution whereby he can only act under legislation arising under delegated powers.

What about the many positions he has created and czars that he has appointed to these positions without congress advising and consenting? Not to mention no constitutional power.

I could go on, but it's absurd to say that Obama and the congress are in any protecting person and property, working on behalf the states as required by the general welfare of THE UNITED STATES, not the people, clause.

Jared Ford| 6.29.10 @ 7:58PM

"If you are going to be honest, (I doubt it) You will admit the real reason for the 2nd amendment.
It was devised to protect us from our own government."

Correct. But by the federal government, not the state governments (that was left up to them, and their own constitution and laws). Hence this decision being just another example of federal overreaching by the judiciary.

Northern Rebel| 6.29.10 @ 1:27PM

Here's another thing that gets my gander:

Everybody has waited with bated breath for the decision to come down from on high. As if the Supreme Court Justices are Gods!

My friends, there are 3 branches of EQUAL government! The Supreme Court is but one of them. They are not the arbiters of our freedom.

There are recourses for any judgement by "the robed ones", as my fr..., well as RCV calls them.

If we disagree with their judgements, courageous legislators, (Hah!) can pass laws overriding the court.

Better yet, we could amend the constitution that the supreme court purports to uphold. I will say it once more:

The Supreme Court justices are not the arbiters of our freedom!

We hold that power in our hands. It is called voting. Our votes give us the government we deserve, not a bunch of bathrobes.

For instance:

If we elected the right people, they could amend the Constitution, so that illegal immigrant's children born in the US would no longer be granted automatic citizenship.

I would bet my family's life, that it would be UNANIMOUS!

All 50 states would ratify this amendment in record time! (Or all 57 states, If you're the President)

The problem is, as always, educating enough Americans to understand America, and it's values. That way, there are less RCV's and Alan Brooks' in our great country!

Al Adab| 6.29.10 @ 3:25PM

Today the Justices function as a privy council or tribunal of dictators who decide- all too often based on ideology- what we as a nation are. Free men do not have their laws changed by fiat but through legislative process. The Left knows their agenda is not acceptable so they impose it through court directives.

Good judges know what the law is weather they personally agree or not. They are sworn to uphold and apply the Law, not their personal preferences.

Because of what the Court has become, our laws are made not enacted. That is a great step toward tyranny. This nominee is clearly an ideological pick, not a consequential jurist.

RCV| 6.29.10 @ 4:44PM

For once, you are absolutely right about one point: We do hold the power in our hands to elect the people of our choosing (we did so in 2008, when we elected President Obama) and to pass laws supported by the majority of our representatives in Congress (as we did with health care reform). And, we can indeed amend our Constitution; we have done so many times over the years - to abolish slavery, guarantee equal protection, end child labor, grant women, non whites and 18-21 year-olds the right to vote; ensure freedom of speech and religion, and all those criminal procedural rights the Framers (but not many of today's conservatives) believed so fervently in. And we could do so with respect to the citizenship of illegal immigrants. But the reason we have an independent judiciary was that the framers so wisely recognized that rights guaranteed under the Constitution are worthless if they can be trampled on by a majority. One of the many, many checks and balances those incredible 18th century young men gave us in our Constitution.

Big Leo| 6.29.10 @ 1:28PM

Odd that my years of study should so contradict your own. What state militias existed in 1787? There were local militias and occasionally a state had an officer in charge of coordinating these, but there were no state militias. According to the Federal Militia Act, the militia is legally defined as every legal male resident of the country. There was no other militia definition at the time. Furthermore, there was widespread discussion in the press over European rules that limited weapons ownership. In short, it was rather like today's situation.

Sorry, but your reading of history is very selective indeed, and ignores the historical situation at the time of the writing of the Constitution.

Vern Crisler| 6.29.10 @ 1:55PM

The fact is, the 2nd Amendment only applies to what the federal gov't can or can't do. It has nothing to do with the States. The incorporation idea is just a power grab by the Court (since the late 1940s). A good result cannot be justified by a faulty means.

Len| 6.29.10 @ 2:19PM

Vern I have to agree. Those who argue the Bill of Rights as being incorporated in the 14th rely on a few remarks from Senators that "failed" to simply write what would be such a fundamental alteration of the entire structure of governance in the United States.
We would then no longer be operating under federalism, but a national top down structure wherein the federal government no longer operates under delegated powers for the benefit of the states, but rather dictates to the states as it sees fit. Even further though how can the Article 4, Section 4 guarantee of a republican form of government be thrown aside to amend the US constitution?
A far better solution would have been to amend the US constitution with a provision for ousting states that violate natural rights such as the right to self defense. This maintains federalism as far police/internal legislation, and also a union that is for the mutual benefit of the states.

Vern Crisler| 6.29.10 @ 3:50PM

Right, domestic issues are the provenance of the States, and the only way the federal gov't can interfere is through the Amendment process, not through the judiciary. Of course, the States already protected rights through their own constitutions. They were afraid the new federal government would interfere with those rights. Hence the bill of rights was a restraint upon the federal gov't, not the States. The incorporation doctrine completely overturns this -- and I think the judges know very well their use of incorporation is a raw power-grab. They're too antinomian to do anything about it, though.

Nick| 6.29.10 @ 4:03PM

Mr. Crisler,

If the Second Article of Amendment only applied to the federal government it would be worded like the First Article of Amendment: "Congress shall make no law [...]."

They didn't word it that way. They used the words "the right of the people." The PEOPLE have the right to keep and bear arms. No government entity, whether it be federal, state, county, or municipal, may limit the ownership or carrying of firearms. Period.

This was the intent of the Framers.

RCV| 6.29.10 @ 4:48PM

Nick - everyone recognizes that the Bill of Rights originally applied only to the Federal government. That's why it is in the federal Constitution. None of it became binding on the state governmnets until the Fourteenth Amendment passed, which protected the people of the United States from having their fundamental rights abridged by the States. The framers dealt with their own States powers in their State Constitutions.

Vern Crisler| 6.29.10 @ 5:10PM

The 14th Amendment DID NOT incorporate the Bill of Rights to the States. That is a myth. Mass incorporation only started during the late 1940s, without the slightest constitutional justification.

Jared Ford| 6.29.10 @ 6:03PM

Actually, incorporation started fifty years before that, during the 1890s. In fact its origins lie in the conservative Lochner era.

But I digress, the 14th Amendment did NOT incorporate the Bill of Rights, which is exactly why conservatives should be more concerned with this decision.

Vern Crisler| 6.29.10 @ 8:20PM

In 1900, Harlan in the Maxwell case dissented from the decision using incorporationist reasoning. In the Gitlow case of 1925 the justices used incorporationist reasoning.

But it was the Everson decision in 1947, with Hugo Black's incorporationist reasoning, that started the ball rolling.

Needless to say, none of these justices was being true to history of the 14th Amendment or to the Constitution.

And you are right: conservatives should be very concerned when fraudulent judicial means are used to obtain a good result. That way lies tyranny.

Jared Ford| 6.29.10 @ 8:46PM

I think it's fair to trace it back to the Lochner era, and the whole notion of economic substantive due process, which started with Allgeyer v. LA in 1897. But I can see why one might see that as a bit of a stretch.

And regardless, you are right: none were being true to the 14th Amendment or to the Constitution.

Len| 6.29.10 @ 5:59PM

Nick, the intent of the Bill of Rights is made known by the Congress' statement as follows...THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution

The above is the preamble to the Bill of Rights, which shows that those amendments were put in place as protection for the states and the people against the federal government.

This is all academic anyway as the US constitution as an instrument for delegating certain powers for stated ends was discarded a long time ago. Were it actually in effect the federal overlord government would be about 5% of the size it is now, and we wouldn't have myriads of socio-economic programs or military bases overseas, but we would rather have a congress legislating for the states and a military actually defending our borders.

Nick| 6.29.10 @ 7:06PM

Len,

If the Second Article of Amendment meant to prohibit only the federal government from regulating arms, why didn't the Framers word it the same as the First, i.e. "Congress shall make no law [...]?"

Jared Ford| 6.29.10 @ 7:52PM

Did you not read the text of the preamble, which Len posted? It makes clear that the Bill of Rights are intended to restrict the federal government. Nothing is said about the states.

As for the lack of mention of Congress in the 2A, that's the case for every Amendment in the Bill of Rights except the 1A. It's clearly a statement meant to also be applied to all of the following Amendments in the BOR, rather than being needlessly repeated in each BOR Amendment.

And even if the 1A was the only Amendment that applied only to congress and not the states, why was it that no Amendment was ever applied against a state until 120+ years after ratification, via the (ridiculous) doctrine of incorporation created by the Supreme Court? Wouldn't the founders have said something about, for instance, the states that violated the 7th and 8th amendments by not providing grand juries in criminal cases, or not mandating jury trials for civil cases in matters over $20?

Really, conservatives are just continuing the previous abuses of the liberals on the Court, via the fraud known as "incorporation." Then again, I suppose that's really no surprise, since the idea started with conservatives.

Nick| 6.29.10 @ 8:17PM

Mr. Ford,

I'm not arguing for incorporation. I'm arguing that the Second Article of Amendment always applied to the several States.

The Framers meant what they wrote in the Bill of Rights. When they were talking about the federal government, they stated it clearly. When they were talking about the several States, they stated as much. Mostly, they listed what could not be done to the people.

Are you claiming that the States could lawfully put someone on trial twice for the same offence?

Jared Ford| 6.29.10 @ 8:41PM

Well, that's an interesting textual argument, but it's ultimately reliant on your own preferential reading of the text, rather than the founders' intent/meaning behind it.

Again, the preamble to the BOR makes it clear that the BOR is a restriction on the federal government. No mention is made of it restricting the states. And again, none of the founders ever suggested such a reading of the BOR. As I said above, none in that first generation ever challeneged state governments or state laws for not complying with the BOR (again, see for example the 7th and 8th Amendments). In fact, it took the whole notion of "incorporation" (120+ years after the founding, mind you) to even make the argument that any of the BOR do apply to state governments/laws.

And when you think about it, why a 200-some page opinion by the Supreme Court yesterday clearing up this issue? If it were obvious that the 2nd Amendment has always applied to states, you think at least one of the 5, in all their varities of constructionalism/originalism, would have just said: "the 2nd Amendment has always applied to the States" and ended it right there. But they didn't.

As for your last question, I would not make such a claim, but only because, via "incorporation," the Supreme Court would likely find such an action unconstitutional. However, if the Court was truly in the business of respecting our Constitution and our federalist structure, then yes, the federal government should respect such an action by the states. In fact, though I'd have to look for it, I believe something along this lines was once upheld by the Supreme Court (I'm not sure if it was pre-incorporation or not, though).

But I should also mention that, in this day and age, I doubt people would stand for that, and would probably ratify an Amendment prohibiting states from doing such a thing. And that's how it should work- through the democratic process. We don't need the courts deciding these issues for us, at their own will.

Len| 6.29.10 @ 9:11PM

Palko vs.Connecticut, then reversed through the incorporation line in Benton vs. Maryland. So up until 1969, the states were left to determine for themselves whether or not to allow double jeopardy.

Jared Ford| 6.30.10 @ 3:38PM

Thanks for that, Len!

Len| 6.29.10 @ 5:59PM

The above is the preamble to the Bill of Rights, which shows that those amendments were put in place as protection for the states and the people against the federal government.

Jared Ford| 6.29.10 @ 6:06PM

Let's hear it for some common-sense libertarianism!

Jared Ford| 6.29.10 @ 7:53PM

"This was the intent of the Framers."

No, it wasn't. You just made that up.

Ellis Wyatt| 6.29.10 @ 2:09PM

"the right of the people to keep and bear Arms, shall not be infringed."

Pretty simple.

Al Adab| 6.29.10 @ 3:30PM

Pretty simple unless your ideology makes the Constitution an "Inconvenient Truth". Heh Heh.

Jared Ford| 6.29.10 @ 6:17PM

Actually, it is pretty simple- when you're talking about the FEDERAL government infringing on the right to keep and bear arms.

This case is about states doing so, and the 2nd Amendment was never meant to be applied to the states; such an idea runs contrary to the most basic purpose of the Bill of Rights. Thus those championing this case as a validation of an individual's right to bear arms (which was actually affirmed in Heller- not this one), rather than the expansion of the bullocks 14th amendment substantive due process incorporation theory that it is, don't really understand what this decision is about.

Ellis Wyatt| 6.30.10 @ 10:26AM

So the constitution does not apply to states? States can just ignore the Bill of Rights? Any amendment only applies to the federal government, but can be denied if a state feels differently? Think about the argument you are presenting here.

Jared Ford| 6.30.10 @ 3:33PM

This argument only seems odd to you because you have clearly never heard it. But the notion that the Amendments that constitute the BOR were not intended to apply to states, is well known to anyone with even a basic command of US constitutional history. (Though whether they apply today, post-14th Amendment, is a separate issue).

Of course the Constitution can apply to the states, as can Amendments, which are part of the Constitution. Take Article 4, for instance, which applies directly to states, or the 19th Amendment (just one of many examples) which does the same.
On the other hand, it's only common sense that portions of the Constitution can apply to only the federal government. Take the 16th Amendment, for example, or the first three articles outlining the structure of the federal government.

The Bill of Rights, as made clear by the intent of the framers, its own preamble, and the wording of the Amendments found within, was not intended to be applied to the states. This is almost universally acknowledged. The issue today is whether the 14th Amendment makes those them applicable to the states. In fact, that was the whole point behind McDonals, but it's clear you haven't even looked at the case.

So, to answer your questions:

The Constitution certainly applies to states, as the supreme law of the land, but only when it is directed towards the states.

States could without question "just ignore" the BOR after the Constitution was ratified because the BOR was never meant to apply to them. This MIGHT be different now, because of the 14th Amendment- some would say it makes the BOR applicable to states, others (like me) would say it does not.

Not ANY Amendment applies only to the federal government; in fact most since the BOR were made to apply directly to the states, or both the states and federal government.

A state may certainly not do what it "feels" when it comes to Amendments. It must abide by all Amendments that apply to states.

This really isn't a crazy notion at all- a simple read of the wikipedia article on the US Constitution will demonstrate that, and might also do you some good. And the whole 14th Amendment issue (incorporation) is a fascinating topic.

Jared Ford| 6.30.10 @ 3:37PM

*McDonald

Nate| 6.29.10 @ 8:01PM

You're right. Pretty simple. Except that's not what the 2nd amendment says. Read it again.

Ellis Wyatt| 6.30.10 @ 10:46AM

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.

Verbatim and still pretty simple - the right of the people to keep and bear arms, shall not be infringed. "Shall not be infringed" means the state cannot take away your individual right. If you don't agree with that then amend the constitution.

JmsA| 6.29.10 @ 11:56PM

"the right of the people to keep and bear Arms, shall not be infringed." Exactly!

The framers acknowledge the need to maintain militias in context with the times, yet unequivocally affirmed the supreme right of the people to keep and bear arms, without infringement, to protect themselves and their freedom.

Jared Ford| 6.30.10 @ 12:19AM

Once again .... that's fantastic! Really, it is. And I agree.

But that wasn't at issue in this case (that was settled two years ago in Heller). With the 2nd Amendment, the founders affirmed the supreme right of the people to bear arms within the realm and control of the FEDERAL government. In other words, with that Amendment, they made it clear that they had no intent of letting the FEDERAL government tell states what to do in regards to guns. Yet that is exactly what this decision allows the federal government to do!

It's anti-founder, anti-Constitution, judicial activism, plain and simple. Even if you happen to like its practical outcome.

Nick| 6.30.10 @ 12:23AM

Mr. Ford,

So, you are claiming the same 5 justices forgot how they ruled in Heller?

Jared Ford| 6.30.10 @ 4:38AM

Not for a second. Where do you even come up with this stuff?

Those 5 justicies got it exactly right in Heller when they affirmed that the 2nd Amendment prohibited the federal government from instituting gun regulations in federal territories, lands, etc.. But they simply and clearly forgot the limitations of the federal constitution when they ruled, in this case, that the right to bear arms was "incorporated" against state constitutions, laws, etc.

Anyone's nability to dinstiguish between these two very different situations worries me.

Ellis Wyatt| 6.30.10 @ 10:41AM

So what other amendments can states choose to ignore? 1st? 4th? 5th? Why only the second amendment?

Jared Ford| 6.30.10 @ 3:10PM

Well, since the Bill of Rights was not intended by the framers to apply to the states, and since there is still no constitutional basis for them to be applied to the states, states can "choose to ignore" all of them.

Where did I say, or even suggest, that states are not bound by ONLY the 2nd Amendment?

David| 6.29.10 @ 4:13PM

RCV, I suggest that "a well-regulated militia being necessary to a free state" means that the individual citizens of that states have a right to keep arms in order to always protect themselves from the tyranny of the federal government, which has total control of the national branches of the military.

David| 6.29.10 @ 4:20PM

Big Leo, did your study of the founders also include their constant fears and warnings about the federal government grabbing too much power. There may have not been "official" state militias in 1787. However, with an armed citizenry in the states, immediate formations of militias to resist to federal encroachments has always been possible. With the founders concerns about federal power grabs, I don't see how your line of thinking is in line with what the founders feared.

Jared Ford| 6.29.10 @ 7:32PM

Correct. The founders feared the grab of state power by the federal government. Which is exactly what happened to day, if you really take the time to think about it.

Big Leo| 6.29.10 @ 7:44PM

Of course. Fear of a tyrannical central government was crucial in forming the Second Amendment. However, that does not alter the fact that militias were local, not state. The goal of the Second Amendment was an armed citizenry, not an armed governor of Rhode Island.

Jason| 9.2.11 @ 5:09PM

Big Leo, this doesn't even make sense.

David | 6.29.10 @ 4:24PM

Northern Rebel, he campaigned in 57 states "WITH TWO MORE TO GO", I believe is what the Bam Bam said.

Ken (Old Texican)| 6.29.10 @ 4:28PM

RCV, as most unrepentant communists stuck on stupid forgets.....we already have our fire-arms.

Second, we have had them for many generations, and so some serious precedent has been ingrained.

Third, to date no federal government has tried to take them away, fearing as they should the reaction of a free people.

Fourth, the several States have gone along except for hand-guns in most cases. Many towns over the years have had hand-gun ordinances of various stripes, but criminals on the ground have made the defacto enforcement of those ordinances pretty spotty.
Fifth, I will use whatever I deem most appropriate for defending me and mine. 50 million like minded citizens...and me...make a pretty overwhelming majority over the sheeple cowering in their chains.

Sixth, our "law enforcement" community does treat us with respect and deference in the most part, unless one or more of us is out of control or commiting other crimes they are sworn to defend against.
In most countries and in most of history, that is simply not the case.
Finally, our peace officers for the most part sorta' enjoy the idea that we are on their side. Personally, if I saw a peace officer in a mess, I would try to bail him/her out, as would many of you.

...not such a bad way to run a railroad.

RCV| 6.29.10 @ 4:55PM

Ken, Old Texan, I agree with much of what you say, and most assuredly with your salute to our nation's fine law enforcement officers. They ARE on our side, and I would risk my life to save one of theirs if I saw them in a mess. And yes, Americans have long had their firearms, and no, the government could not take them away, nor impose unreasonable controls on their ownership by people who are not criminals, mentally unstable, minors, etc. My argument on the Second Amendment is an historical and constitutional one. And, believe it or not, I am not nor have I ever been, a Communist, unrepetent or otherwise. I do confess to being a Democrat, which I realize in your old Texan eyes is much the same.

Ken (Old Texican)| 6.29.10 @ 5:38PM

RCV,
I am going to take you at your word that you are not an unrepentant communist...at least for the moment. (smile)

I am dreadfully sorry though. I must remind you that you ARE stuck on stupid.
Why?
Because today's Democrats have veered so far left that they are literally bolsheviks.
Read about the 1917 Russian revolution. Their new republic was still trying to figure out how to govern themselves.
The bolsheviks came with guns and cannons.

That won't happen in the US. No bolshevik can survive 50 million snipers.

If you do in fact earn a living...you are stupid to side with the bolsheviks.
On the other hand...
If you do NOT earn a living...then they are your forlorn hope.
I'm sorry.

RCV| 6.29.10 @ 7:41PM

I most assuredly do not side with the Bolsheviks, and wouldn't have done so in 1917 in Russia. The fall of the Kerensky KADET government was a tragedy of great proportions. (Read Orlando Figes superb history of the revolution and its aftermath, "A People's Tragedy".)

I believe strongly in a Constitutional Republic. I abhor Bolshevism, dictatorships of the proletariat or of the rich, support full, fair and complete elections.

But, Ken, every now and then, you lose one of those elections, like you did in 2008. We -- the American people -- elected Barack Obama. We voted for him because he promised health care reform, repeal of the Bush tax cuts, a new kind of foreign policy, etc. Your guys, who opposed those things, lost. Take it like a man, organize for the next election, and stop acting like the world came to an end. I lived through that sorry excuse of a man from Midland, Texas, and so will you.

Nick| 6.29.10 @ 8:03PM

RCV,

"We voted for him because he promised health care reform, repeal of the Bush tax cuts, a new kind of foreign policy, etc."

How's that Hopey-Changey thing workin' for ya'?

Actually, President Dither promised "universal health care." Didn't happen!

A new kind of foreign policy? Where? O'Bama's regime kept GWB's SecDef. He just put General Petraeus in charge of Afghanistan. There is no way we will be out next year. We'll also still be in Iraq.

Repeal of the tax cuts? We'll see.

RCV| 6.29.10 @ 11:38PM

The hopey-changey kind of thing's working out pretty darn well, from my perspective. No, we didn't get universal health care - I'm not a single-payer fan, though I would have preferred a public option. But the reform process is an important start. As for Iraq and Afghanistan, extracting us from ill-considered wars is sticky. I think the strategy he's following is the best of many options. As for the Bush tax cuts, we'll do our best and see if the GOP is really serious about the deficit or more interested in preserving the status quo for their friends.

Nick| 6.30.10 @ 12:21AM

RCV,

Nice try!

But, in the words of President Dither: "You can't put lipstick on a pig."

Nick| 6.30.10 @ 12:26AM

RCV,

Also, how about some answers to my questions, from above:

So, you are claiming the Second Article of Amendment changed this clause of Section 8, namely Congress had the power to regulate the militia? Also, you believe preambles have the force of law?

And, again, do you know the difference between the regular and select militias?

"I've read virtually every book [...]."

Does that mean no, you have not read the book?

Brian B| 6.29.10 @ 7:04PM

RCV,
The problem with your citations and position is that they are outside of the considerable body of scholarly research which led directly to Heller
Heller did not come existence fully formed but was the result of careful historical analysis and arguments by Halbrook and countless others over the last 30 years.
Were state militias part of the reason behind the 2nd amendment? Of course.
But to argue they were either solely the reason for it or that it consequently entailed a collective right, if that is what you are so arguing, is simply not born out by the record.

RCV| 6.29.10 @ 7:44PM

Brian - Thanks for the reasoned response. I've pored through that record, just as Hallbrook has, and read it differently. But that happens in constitutional analysis. Heller is settled law, and life goes on.

darcy| 6.30.10 @ 12:23AM

Or it doesn't, as for those who were butchered as a consequence of Roe.

Jared Ford| 6.30.10 @ 3:35PM

Way to stay on topic with that direct response.

darcy| 6.30.10 @ 8:55PM

Don't open doors you don't want to walk through.

Jared Ford| 7.1.10 @ 2:28AM

I'll walk right through your door any time, darcy.

Nancy in NC| 6.29.10 @ 4:55PM

With their convoluted idea of Utopia, the lefties seem to be confused that people kill people...guns don't work on their own. And countries that have banned guns have found that crime doesn't go down; only the honest give up their weapons. After all, if someone wishes someone dead, they will find a way.

As far as I'm concerned an armed society is a polite society.

Jared Ford| 6.29.10 @ 8:19PM

Well said. Except none of that has anything to do with this case. This case was about the "incorporation" of the 2A against the states, or better put, STATES RIGHTS.

And unfortunately, this case only showed us that conservatives are (like liberals) willing to buy into this asinine theory and infringe on states rights, when it helps their own cause(s).

Keith Bergstresser| 6.29.10 @ 8:50PM

I don't think all those who bought into this incorporation BS are all conservatives. The "conservative movement" has been hijacked over the last couple of decades by RINO's and deceptiCONS, those who claim to be conservative but really aren't.

Look at the fugitive slave law that was passed in the 1850's. The south thought it was great even though Congress had no authority to pass it because it infringed on States' rights. The Civil War infringed on States' rights again when Lincoln and Seward decided that the voluntary union wasn't really voluntary after all and forced Maryland to remain in the union and then started a war with the Confederacy.

When so called conservatives argue that Roe v Wade was decided wrong because abortion should be left up to the States to decide but turn around and praise the court for overturning a State or local gun ban, the term I would use would be hypocrisy. You can't have it one way when it suits you but then complain when you don't like the outcome.

Thom| 6.29.10 @ 9:20PM

Jared Ford/Keith Bergstresser you have valid points if you ignore about 145 years of supremacy of the Federal government over the “several states” in almost all points of law. It isn’t just “incorporation” of the first 10 (eight) actually amendments that is the problem but the subversion of the “several states” to a central power. You both forget that Federal laws supersede even state laws in many cases and Federal gun control laws are just one very bright line where this exists. My state has an even stronger Second Amendment provision in our Bill of Rights and that is null and void due to Federal supremacy in practice. What you are both arguing for is “states rights” under Federalism so don’t throw out the baby with the bath water because the first 8 amendments to the Federal Constitution are made part of the States Bill of Rights. If you want to make that point fine but please tell me which of the original 8 (excluding the 9, 10th) you disagree with and don’t want in force in your state?

Len| 6.29.10 @ 9:28PM

It's about who is protecting rights and the peril of too much power being located centrally, which makes it all that much easier to bully people and the states and thus lead to those rights being dismissed, no matter where some piece of paper says that the power to protect lies.

As far as "supremacy", that continues..in pursuit of this constitution, so it's application is limited ONLY to those powers granted through the US constitution, and as the 10th says ALL ELSE remains (is reserved) with the people and the states.

Jared Ford| 6.30.10 @ 1:36AM

Thom,

First of all, where do you get 145 years from? The end of the Civil War? It's really not clear. But if that's what you're talking about, I don't believe that the Civil War was justified, nor was the enormous federal takeover that occurred during and after it. I despise all unwarranted (and especially unconstitutional) centralization of power.

I certainly understand that federal law is supreme to state law. That's quite obvious to anyone who knows anything about our federalist system (which, apparently, is not a great number of people). But that doesn't change the fact that the federal government may only legislate in the realms in which we have granted it power to legislate. This includes the realms of interstate commerce, common defense, etc. But when the federal government lacks authority to legislate or enforce, state law trumps. And in the case of the Bill of Rights, the BOR was never intended by the framers to apply to state governments, so state law trumps. And any effort by the federal government to extend is applicability to state governments and law is unconstitutional.

As for your own State's gun laws being usurped by federal supremacy, that really sucks, and I couldn't disagree with that more. But that, like this, is just one more example of the federal government overreaching itself. And your opposition to such centralization shouldn't lead you to favor more centralization, just because you favor the outcome of that centralization. Doing so makes you no different from the liberal judicial activists that I’m sure you dislike. But Len summarized it quite well. This case is just one step in the direction of centralization, a direction that I’m sure you fear. The federal government (and worse, federal courts) are now one step closer to completely dictating what states may do or not do in regards to guns. And what they “give,” they can just as easily take away.

As for the federal BOR being "made part of the States Bill of Rights," I’m not entirely sure what you mean. The federal BOR was never made a part of the states BOR in the sense that the federal BOR can be enforced against states by the federal government; and that’s because, as I’ve said repeatedly, the FEDERAL Bill of Rights was never intended to apply to the STATE governments. If, on the other hand, you reside in a state that happened to adopt the federal BOR as part of its own, then you have those protections from your state. But the similarity (or even identical nature) of your state’s BOR to the federal BOR does not give the federal government the power to interpret your state’s BOR, just as the federal government has no right to interpret the BOR of a state that has a more restrictive BOR than the federal government’s.

All that being said, as to your question, I personally want all of them in force in my state (or at least all of them but the 8th amendment, which I could really care less about). But when it comes to the federal governmetn and its BOR, I want them in force against only the federal government, as they were intended to be; not against my state government. If I want these same rights in force against my state government, I’ll move to a state that has adopted these same rights (as I have done), or work to have such rights adopted in that state.

In the end, despite this long-winded post of mine, I feel that your whole argument can be summarized as follows: “yes, this decision might be unconstitutional, but we need this unconstitutional court-made law to combat other unconstitutional legislation that I happen disagree with.” The problem is, we don't need any more unconstitutional centralization of power, as it will eventually destroy our constitutional system. We also don’t need the federal government telling us what we can't do, just like we don't need it telling us what to do, so long as it wasn't granted the power to do so in the first place. Unfortunately, that’s exactly what this case does.

Purpleguy| 6.29.10 @ 11:02PM

Bingo!

Jared Ford| 6.30.10 @ 12:23AM

"I don't think all those who bought into this incorporation BS are all conservatives."

In regards to this case? Probably not, but most of them seem to be. I could be wrong, though, of course. And of course, I am willing to accept the view that those who support this ruling aren't true conservatives. Then again, many of my well-informed conservative friends were psyched about this "great day for individual liberty," etc.

As for the rest of your post, you're spot on.

In regards to incorporation? Certainly not. In fact I hold liberals largely responsible for that.

Craig Goodrich| 6.30.10 @ 11:27PM

"When so called conservatives argue that Roe v Wade was decided wrong because abortion should be left up to the States to decide but turn around and praise the court for overturning a State or local gun ban, the term I would use would be hypocrisy."

Not necessarily. (As a matter of fact, that's my position.) The right to arms is specifically recognized in the BoR. In the Framers' day, abortion was regarded as hideously and unarguably immoral, but the few mentions of the subject in the Common Law of the time were based on "quickening", i.e. the beginning of the second trimester, when movement of the baby could be actually felt.

They didn't have ultrasound imaging in Colonial days.

R v W attempted unsuccessfully to make the same sort of distinction. Subsequent decisions -- based on the loopy reasoning of the R v W decision -- extended the newfound right to, essentially, moments before birth.

The bitter division over this issue is Exhibit A in the argument that the Feds never should have become involved in a question that was never theirs to decide in the first place.

Purpleguy| 6.29.10 @ 11:11PM

Exactly - since the Civil War, the Constitution has been interpreted to fit the prevailing societal norms, and both right and left have and continue to do that. Since they don't have the guts to Amend the Constitution, they ignore it.

I would say however, that even though the Founders gave us the power to Amend the Constitution, they sure didn't make it easy... it's really incredibly tough to get 2/3 of the Congress and 3/4 of the states to agree on anything.

Purpleguy| 6.29.10 @ 11:08PM

So, to stop airline hijacking, would you support passing out guns to the passengers and collecting them again after the flight?

You ever been on the wrong end of Road Rage? And, if you both had guns?

You ever been in a bar when a fight broke out? And, if everyone had guns?

Sure, people kill people, but if you had ever been in military service, you would know that the long distance shot is much easier, more likely, than up close and personal bayonet or knife attacks.

And, you're wrong about crime. America has the most crime, with violent crimes center stage.

JimE| 6.29.10 @ 11:28PM

Purpleasswipe,
More drivel from the mindless liberal cyborg. You are moron and work hard to perfect your craft.

Jared Ford| 6.30.10 @ 1:41AM

And yet the funny things is, Purpleguy has contributed more to this discussion than you have, and probably more than you ever will be capable of doing.

But keep up the ad hominem. It certainly justifies your support of the federal takeover of our lives and liberties.

Craig Goodrich| 6.30.10 @ 11:06PM

"America has the most crime, with violent crimes center stage."

Umm, no. It depends largely on what kind of crime you're talking about. Britain, for example, has an "occupied home" burglary rate several times that of the US, which in turn has an "unoccupied home" rate slightly above Britain's -- a fairly obvious consequence of the greater risk of the burglar being shot in the US if anybody is at home when he breaks in.

Scotland's murder rate -- with the UK's essentially complete gun ban -- is similar to the US's. Violent crime has skyrocketed in many places in Europe, notably the Netherlands and Malmo, Sweden, which most objective observers attribute primarily to the influx of Islamic immigrants.

So, once again, it all depends on what part of the South you're from...

Purpleguy| 6.29.10 @ 10:59PM

"Justice Scalia offers an extremely harsh and sarcastic view of Stevens' dissent, saying that Stevens somehow just "knows that the right to keep and bear arms is out (while)…only 'some fundamental aspects of personhood, dignity and the like' are protected." In other words, Stevens protects the rights he wants to protect, not protecting rights because they are rights." - If Scalia is willing to admit the "right to privacy" exists, altho not specifically worded as "privacy", then he can have the "individual right to bear arms", from which "individual" is not mentioned either. Quid pro quo ...

The majority has read a right into the 2nd Amendment that is not explicitly stated, which is reasonable, but not strict constructionist or originalist. But then, the Roberts Court has shown itself to be amongst the most activist Court in years. So much for Judges not legislating from the bench ...

Craig Goodrich| 6.30.10 @ 12:54PM

In the sentence "The right of the people to keep and bear arms shall not be infringed", the existence of the right of the people to arms is PRESUPPOSED, not merely stated. In the view of the Framers, this was a preexisting right -- one of the "traditional rights of Englishmen".

I fail to see what is not "originalist" about this.

JimE| 6.29.10 @ 11:30PM

Purpleasswipe, more cut and past huffpo trash, you are a retard and probably a homosexual predator

Jared Ford| 6.30.10 @ 1:40AM

And yet the funny things is, Purpleguy has contributed more to this discussion than you have, and probably more than you ever will be capable of doing.

But keep up the ad hominem. It certainly justifies your support of the federal takeover of our lives and liberties.

Tom in Michigan| 6.29.10 @ 11:44PM

Look, this debate is very simply dissected. Why would the 2nd be the only Amendment within the Bill of Rights which applied to the state or to any governmental entity instead of to "The People?" “Heller” clearly elucidated this distinction and established once and for all the applicability of the 2nd to "We, The People."

Now, "McDonald" (Otis! My man!) establishes that the 2nd applies, as do all the other Bill of Rights amendments to the states and, therefore to their constituent factors such as municipalities and even the benighted District of Columbia.

The leftist dissenters in "McDonald" have revealed for all to see that degenerate and discredited leftist ideology trumps jurisprudence for them and that the Constitution and its Amendments (in their eyes, at least) is a mere impediment to the leftists’ control-us-all agenda.

I strongly suggest you "Google" and then read the entire decision. The twists and turns of the dissenting opinions are a wonder to behold (Spoiler alert! The leftist justices say, "Stare decisis applies wheres I likes it but not wheres I doesn't!" in just one of the leftist distortions you will witness during your journey through the dissenting rabbit hole but, you will freaking LOVE how Justices Thomas and Alito stuff the Fourteenth Amendment down their gullets).

Don't! you Conservatives though rest on your Heller and McDonald laurels as Barack Hussein Obama (Peace be upon him!) has sent forth a leftist of no particular curriculum vitae to correct the Originalists on the Court and assure the victories wrought by Messrs. Heller and McDonald (by the way; did you know Mr. McDonald is a 76-year old combat veteran who was defending his home because the Chicago Police could or would not? May I be blessed to be the next to buy him, my Brother from another Mother a case of .40 ca. rounds, which I believe is what he righteously used to defend himself and his family? I myself tote a .45 but, I’m a bit younger and probably more vicious than Mr. McDonald, God bless him please! Plus, I’m in Detroit where we don’t mess around! Come into my house unbidden and with ill intent and the .45 is the smallest bore you’ll see in your final moments) will not stand.

As Ms. Kagan slouches toward confirmation, we must realize this battle is far from over but, 'til then I strongly recommend you attain your CCW permit, lock-n-load and prepare for yet another leftist assault upon what was once your Constitutionally-guaranteed freedoms as the stunningly unqualified but leftist-certified-to-be-politically correct defender of all things leftist and, therefore wrong, Kagan is enthroned upon the SCOTUS and the majority shifts to the left. They are just biding their time because they know “a well regulated Militia” is “necessary to the security of a free State” and is therefore, the only thing stopping their final “march through the culture.”

darcy| 6.30.10 @ 12:34AM

Tom in Michigan: That's a keeper, and entertaining to boot. I will place your wise and learned words in my verbal ammunition storage area, er, hard drive, where they will be handy for the next assault.

Jared Ford| 6.30.10 @ 3:46AM

Darcy,

This is certainly a "keeper," at least if you intend on showing others that you have no idea what you're talking about when it comes to this particular case.

Jared Ford| 6.30.10 @ 3:35AM

True, this debate is very simply dissected, at least by anyone who knows anything about our federalist system, as well as what THIS particular Supreme Court decision means to that system.

It is true that anyone who attempts to argue that the 2nd Amendment applies only to a government (or a militia, for that matter) has no idea what the 2nd Amendment actually says, or what it was meant to convey. As the Supreme Court rightfully affirmed two years ago in Heller, “the Second Amendment right is exercised individually and belongs to all Americans.” But honestly, that opinion has NOTHING to do with the present case. And it pains me that you can barely recognize this.

McDonald instead, as you acknowledge, concerns the applicability of the 2nd Amendment to “the states and, therefore to their constituent factors such as municipalities and even the benighted District of Columbia.” Putting aside the DC issue (which was actually decided in Heller, a case that dealt with federal/non-state territories such as DC; not this particular case, which deals with states … DC not being one, in case you didn’t know), it holds that the 2nd Amendment applies, via the substantive due process doctrine of “incorporation,” to state governments, state constitutions and state laws. And this is ultimately its problem.

First, despite your insistent rhetoric, all of the other federal BOR Amendments do NOT apply to the states. Take for example the 7th Amendment, and certain clauses of the 8th Amendment, which have never been held to be incorporated against the states. So even if one supports this asinine doctrine of incorporation, there is no logical reason to assert that ALL off the federal BOR are incorporated.

Second, your assumption that the 2nd Amendment is in fact also “incorporated,” despite years of complaints from conservative judicial experts regarding this B.S. doctrine of “incorporation,” makes virtually no sense. Honestly, if incorporation never had any logical basis up to this point, why does it make sense now? Because you like its result? That’s hypocrisy at its finest.

Yes, it’s certainly true that leftists have long since tried to prove to us that their ideology trumps law and jurisprudence. But the rightists are apparently now, with this very case, doing the very same with this type of centralizing, federal-power-grabbing case. Having read the opinion, and the “twists and turns" of the dissenters, they are really no more surprising than the “twists and turns” of those who formerly, supposedly despised the doctrine of incorporation and instead backed our federalist system, but now instead fully embrace their opponents’ tactics in order to promote their own ends.

And while I’m sure you enjoy seeing the conservative judges shove the 14th amendment down the liberals "gullets" in this opinion, until you realize that no respectable justice should be shoving the 14th amendment and its mindless, accompanying theory of incorporation, down anyone’s throats, I can only laugh at your idealization of this particular case as an affirmation of individual liberty.

Craig Goodrich| 6.30.10 @ 1:07PM

If your position is that the "privileges and immunities" clause of the 14th Amendment refers to something like "the traditional rights of citizens as discussed in 17th and 18th century Scottish republican philosophy", you may be right, but that interpretation would make that clause useless in actual litigation (which the absurdly tendentious Slaughterhouse decision did anyway; Thomas is absolutely right that it should be overturned).

As to $20 civil cases and grand juries, it is likely the case that the reason they have not been incorporated is that no state has sufficiently absurd or unjust rules of civil procedure or criminal indictment to make it worth the long and expensive legal trek it would take to get the state laws overturned.

It's clear from the legislative history that the 14th Amendment was intended to Constitutionalize the Civil Rights Act of 1866. Do you dispute this, or do you simply believe that Reconstruction was a bad idea? (Perhaps it was, but that's irrelevant to interpretation of the 14th Amendment.)

Jared Ford| 6.30.10 @ 3:05PM

Actually, my position is that the 14th Amendment P or I clause, much like the 14th Amendment DP clause, does not apply the federal Bill of Rights to the states, as it was never intended to do so. That is my dispute with the 14th Amendment as currently interpreted (I don't dispute that it constitutionalized the Civil Rights Act).

The $20 civil case requirement was just a random example, and you may be right as to why it has never been enforced. But then also take, for example, the five states that eliminated their grand jury requirements AFTER the 14th Amendment was passed. Not a mention of the 14th Amendment was made by anyone when this happened, despite its supposed incorporation of the BOR.

Craig Goodrich| 6.30.10 @ 5:59PM

From the Congressional Record of the debates on the CRA of 1866, it is quite clear that many (if not most) of the participants (on both sides) believed that the measure would extend arms rights to newly freed slaves. As I said above, that was a principal concern of several impassioned speeches.

Legislators may be, of course, egregiously wrong about legislation they are debating (as we have seen vividly recently). But as to intent, on the evidence I don't really think your case holds up.

Jared Ford| 7.1.10 @ 2:48PM

What case is that? I'd never argue that gun rights weren't an integral part of the CRA 1866. To deny that is to deny history.

Craig Goodrich| 6.30.10 @ 6:28PM

I hasten to add, though, that many States quickly found ways around this -- the South obviously believed that the 14th Amendment guaranteed arms rights to freedmen, too, at least until Slaughterhouse.

Ironically, one of Breyer's examples of "Constitutional State Regulation" is just such an evasion. On p. 26 of his dissent, he cites the 1879 Tennessee law forbidding carry of any pistols "except the army or navy pistol, usually used in warfare" -- these were relatively expensive Colts and Remingtons, out of the price range of newly-freed blacks, while ex-Rebs generally had one left over from the War. The cheaper pocket pistols which the freedman could afford were illegal.

Which of course brings up the secondary point (irrelevant but interesting) that throughout all history, "gun control" (or sword control, or crossbow control, or ...) has never been about safety or crime, it has always been about SOCIAL control.

Jared Ford| 7.1.10 @ 2:54PM

I'd also never argue that gun rights weren't an integral part of the 14th Amendment, which was basically just the constitutionalization of the CRA 1866. But the question is- where do these gun rights come from, the 14th Amendment itself, in its gaurantee of equality of protection under the law, or via the 2nd Amendment, as incorporated by the P or I clause of the 14th Amendment. I firmly believe it is the former.

And also, ironically, the 1879 state law you point out suggests as much. Tennessee clearly believed that the 14th Amendment guaranteed gun rights to everyone, but only so far as everyone was treated equally. Thus Tennessee was able to regulate guns so long as both whites and blacks were treated the same (though, as is obvious, this was only the case on paper).

Had gun rights been thought to be guaranteed via incorporation of the 2nd Amendment through the 14th Amendment, however, any such regulation would have been found to be unconstitutional.

As for gun control in general, I'm a gun rights advocate, but I'm not sure gun control is always about social control. That might be its ultimate effect (and which is what ultimately matters), but I know many well-intentioned people who honestly think that gun control will increase safety and reduce crime. They're just wrong.

Craig Goodrich| 6.30.10 @ 10:26PM

Tom, while I don't disagree fundamentally with anything you say, I DO wish we could stop rabble-rousing long enough for the shops to get in a decent stock of ammunition again. I've been trying for over a year now to find .45 ACP at a reasonable price...

jstwndring| 6.30.10 @ 1:47AM

Interesting, isn't it, how much our Constitutional rights pain those on the political left? They want only the "poplular" Constitutional rights to be incorporated. Well, of course, since the Dems still control the most numerous sources of information, starting with the school system, print-media, and the t.v. networks, and including all sources of pop-culture. They can, and do, use that considerable influence to convince us Americans to slowly turn our backs on our own liberties. The Democrats are lying, manipulative, elitist, tyrants.

Are they gonna let us vote this November? Will our votes even matter?

Jared Ford| 6.30.10 @ 3:43AM

Wait a minute..

You have a "Constitutional right[]" to be free from the regulation of gun rights by your state?

Where in the US Constitution do you find this right?

Craig Goodrich| 6.30.10 @ 9:45PM

There is a point here that is being missed. On page 23 (as numbered; 202 of the .pdf), Mr. Justice Breyer in his dissent cites an 1847 Virginia law forbidding the concealed carry of "any pistol, dirk, bowie knife, or weapon of the like kind" as evidence for state-level gun control. But that completely overlooks the cultural situation at the time: the law was intended to punish sneaky, slick gambler types who kept their weapons concealed. A real man would carry his weapons on his belt, for all to see, which was of course both legal and common at the time. This wasn't "gun control", this was "sneakyness control."

Nowadays, for cultural reasons, civilians carrying guns in most of the country are best advised to carry concealed to avoid freaking out soccer moms at the mall. But the point remains the same: the government has no authority to deprive its citizens of the most effective means of personal self-defense.

Jared Ford| 7.1.10 @ 2:16AM

I really don't see what's being missed here, at least in the post that you're responding to.

With a few notable exceptions (e.g. people lacking a constitutional right to own nuclear weapons, just like they probably lacked a constitutional right to own canons at the time of the founding), the 2nd Amendment is absolute.

Consequently, if the 2nd Amendment applies to the states via the 14th Amendment, the states, like the federal government, simply may not infringe upon an individual's right to bear arms. And this would logically mean that they are not constitutionally permitted to prevent citizens from bearing arms in a manner that they happen to find "sneaky," just like state governments are not allowed to restrict manners of speech that they happen to disapprove of (assuming that the 1st Amendment is incorporated against the states, of course, which I honestly do not think it is).

In short, this doesn't resolve the issue ultimately at hand- whether the 2nd Amendment is incorporated against the states by the 14th Amendment.

Craig Goodrich| 7.1.10 @ 6:43PM

Canon: I don't know about the Colonial situation, but in modern Switzerland -- whose military is a "well-regulated militia" if ever there was one -- local banks and other large businesses have been known to purchase howitzers for the town's battalion, and to the best of my knowledge the business retains legal title to the artillery.

The manner of carry is right on the edge between what someone HAS and what someone DOES. There is no question that local laws against discharging firearms in the village are acceptable and always were, provided that necessity (e.g. protection of self, family, or property) is an absolute defense, as it has universally been understood to be. There is also the legally slippery concept of intent; in medieval England, for example, it was against the (both Saxon and Norman) law to carry a sword "with the intent to terrorize the people", while simply wearing one was common and unremarkable.

My freedom of speech applies unquestionably in a public park (though I may be prevented from turning the amplifier up to eleven), but I can't set my soapbox up in the middle of Interstate 495 at rush hour.

As to your last sentence, I'm apparently failing completely in my attempt to understand precisely what you are asserting here -- either the 14th Amendment is unConstitutional (which would give the whole matter the kind of incoherence we find in California Supreme Court jurisprudence) or it actually means something. The "what" that it means has been argued at various times from different points of view (e.g. the majority and dissent in Slaughterhouse and various other writings since), but I really can't figure out what your interpretation of it is, in an operational sense. If you were a southern State legislator in the fall of 1868, and your interpretation of the 14th were the commonly accepted one, what advice would you give your fellow legislators as to the sort of legislation that was now suddenly unConstitutional?

Jared Ford| 7.1.10 @ 11:12PM

The 14th Amendment can't be unconstititional; it's part of the Constitution. In my view, it means everthing it currently does minus the incorporation bit (that bit being quite a lot, though, I realize).

FTM| 6.30.10 @ 5:41AM

Sorry, I haven't had time to read all of the posts, if this has been covered then please bear with me.

As a gun owner and all that, shooting instructor, range safety officer and the like there is always one point that I like to bring up in regards to the second ammendment. The second ammendment doesn't say a word about guns. Has anyone thought about the ramifications of the use of the word "Arms" versus "Guns?"? According to a strict interpretation of the second ammendment, me, being by definition a member of a state militia, a militia consisting of the citizenry of a state capable of being of assistance in rendering defense of the state, shall not have the right to keep and bear arms infringed. Keeping and bearing arms. According to my reading of the term "keeping and bearing arms" means, sharp sticks, guns, rocks and three stage nuclear weapons.

Forcing the Supreme Court to render a serious decision in regards to the definition of the second ammendment is going to require the rendering of a definition of the word "arm." This, folks, is where the fur is going to fly.

Nick| 6.30.10 @ 9:35AM

FTM,

The term "arms" was well understood at the Founding. It meant muskets or rifles, ball ammunition, powder, etc.

The first militia act listed the items a militia member was expected to have when he showed up to muster. Put another way, it was whatever arms the average infantry soldier would have. So, it could be argued that "the people" have the right to automatic weapons.

Of course, this won't stop liberals from arguing that "arms" meant "the people" had a right to both limbs!

Craig Goodrich| 6.30.10 @ 1:11PM

The excellent Cottrol & Diamond paper "The Second Amendment: An Afro-Americanist Reconsideration" discusses at some length the question of what "arms" means in this context. It's on the Web and well worth careful reading. Google for it.

FTM| 6.30.10 @ 10:31AM

From my reading of the Federalist Papers or perhaps a commentary regarding the Federalist Papers it was my understanding that the word "Arms" was used in order to make allowance for innovation. Maybe I have it wrong, perhaps someone with a better understanding than mine will straighten this out.

Craig Goodrich| 6.30.10 @ 1:13PM

The Second Amendment is about muskets in the same sense that the First is about quill pens and hand-set type.

RCV| 6.30.10 @ 8:32PM

OMG, a believer in a "living Constitution"!

Craig Goodrich| 7.2.10 @ 8:20PM

Moderator, this appears to be spam -- please delete it (and this).

James L. MacLellan | 6.30.10 @ 10:38PM

Second Amendment
If the left leaning liberal justices view the Constitution as modifiable with time does this mean that we can question their tenure and have them removed by a simple vote because "we the people" don't like their decisions?
Or, can they just summarily be excused from serving because they failed to support the Consitition, basing their decisions on personal opinion or what "they thought it should say!"
Activist judges, seem to mimmic those who appoint them, if one lies the other will too.
Integrity, even in the high court seems to be a few quarts low!

Jared Ford| 7.1.10 @ 2:25AM

Yes, left-leaning justices view the Constitution as modifiable, and don't truly support the it. We all know that. Honestly, we really do.

But what's frightening about THIS decision- the one you're (theoretically, anyway) commenting on- is that conservatives have now shown their very similar, true colors.

"Incorporation" of federal rights against the states WAS a joke to conservatives, and an insult to our constitutional order, but now they've "incorporated" a particular right against our states because they happen to like that right? What??

Judicial activism WAS a joke to conservatives, but now they're in approval of conservative justices reading in to the language of the constitution to give the federal government a power over state governments that it was never supposed to have? Huh??

That being said, how is McDonald contrary to any of the problems that you cite?

This case is simply a disgrace, an assult on our constitutional, federalist system. And the fact that conservatives are doing it now, in the place of liberals who have done it in the past, doesn't make it any more palatable...

Bob Waite| 7.1.10 @ 1:12PM

I read most of this strand and do understand the position posited by Mr. Ford that the Bill of Rights does not apply to the states. The problem comes with the addition of the 14th amendment and how we changed after the Civil War from being "these United States" to "the United States". It is now settled law the Bill of Rights apply to the states, whether or not you wish to label that conservative or not. I believe the conservative position has to change to reflect these realities. States are not the almost sovereign entities they were when the constitution was written. So, I think the argument for American rights is valid. And it is not liberal, since it does apply to fundamental law and not to a simple longing like Roe vs. Wade and other liberal decisions did, where they spoke of a right not ever enumerated in the Constitution at all. The states rights argument has many drawbacks, including the fact that the 13th, 14th and 15th Amendments were designed to limit the sovereignty of states by extending citizenship directly to people. Prior to these amendments, American citizenship was a byproduct of being a citizen of a state. This is no longer the case. There is ample evidence that these rights are being assaulted by all levels of government in a way that is unprecedented in our history. Our founders would have believed that something like the right to defend ourselves is an unalienable right, as part of Jefferson's restatement of Locke in the Declaration of Independence, "... life, liberty and the pursuit of happiness." None of these are possible if a person is denied the right to defend themselves and their family and property. I believe it is a conservative constitutional position to extend an absolute right to bear arms to all individuals living in The United States.

Jared Ford| 7.1.10 @ 2:47PM

Sure, it's now "settled" by the Supreme Court that the Bill of Rights apply to the states, but that doesn't make it correct or accurate.

As this case demonstrates, either side can put together as much piecemeal evidence they want to demonstrate incorporation. But that doesn't change the fact that, at the time of its ratification and after, the 14th Amendment was never understood to be such a dramtic overhall of our constitutional system.

Daniel Myers| 7.2.10 @ 11:39AM

"the 14th Amendment was never understood to be such a dramtic overhall of our constitutional system. "

Actually, I think it was. The supporters wanted to make sure that the states individually recognized those rights guaranteed in the Bill of rights. It was kind of the whole point. At least that is my understanding of it.

Jared Ford| 7.2.10 @ 1:50PM

That's cetain the modern day, general understanding of it. But if you really look at the record, and the response to the 14th Amendment at the time, the silence on this issue was defeaning.

Gene| 7.1.10 @ 3:15PM

First of all, there is only one clause in the Second Amendment; it is, in fact, a simple sentence with two phrases. The first phrase is an absolute phrase which modifies the entire sentence.
Second, "...to bear arms" is a military, not a civilian expression. Back when I hunted, I did not "bear arms;" I carried a shotgun or rifle. Later, when I went on patrol, I bore arms.
Next, answer this question. Why didn't the Framers simply write "The right of the people to keep and utilize firearms shall not be infringed"? There would be no question then.
Finally, do note that many of the states which included a version of the Second Amendment had a provision for hunting, self-protection, or both.

Jared Ford| 7.1.10 @ 3:24PM

All of this was settled in Heller. I believe this thread is about McDonald.

C.C.| 7.1.10 @ 3:28PM

Amazing...

Couple of things stand out here:

#1.

Being a Supreme Court Justice does not confer some sort of other-worldly wisdom or insight. They're 'human', just like us. Of course, we would 'hope' that our Supreme court justices would understand and interpret correctly, what was intended for this Free nation of Liberty, under its Constitution and supporting documents - Federalist papers, etc.

#2. It is amazing how these people can (or have to) 'thread-the-needle' on issues of Rights, Liberty and Freedom, that are so basic and easily understood by anyone with even a rudimentary grasp of Liberty as prescribed in our Founding Documents.

#3. Coming again back around to point #1, it is Plainly Visible that Political Correctness and 'Group-think' thought process has indeed found its way past common sense, and into the mindset of our highest law-interpreting body. Again, they are human, just like us. We simply 'hope' (and Trust) that people of this caliber (?) are seasoned and tempered enough to use the Constitution as the measuring device against which all else should be weighed, instead of finding ways to bend and twist that document into a shape that defines Their worldview.

Bottom line?

Eternal Vigilance is the only protection of Liberty.

Amen.

sammy bell | 7.1.10 @ 5:21PM

well to all of you fools that think the second amendment should be aboloshed you need to look at the coon in the whitehouse he is trying to take this country down from the inside all i can say when they try and take my guns hell is comming to breakfast . you people that do not believe in the second ammendment to keep and bear arms are going to be crying for your mothers when all hell breaks loose and mommy aint going to be there for you i hope i can laugh in your face when you all get it stuck up your arses with no protection . how much mor stupid can the american people get after putting a low life coon in the whitehouse . at one time the whitehouse was a clean respectful place well it never will be again it is now littered with chicken bones watermelon rinds and ebony art when the black scum is run out of it and the wall and the floors are scrubed with lysol and clorox maby it will be considered a part of the good old usa again with lots of gun cabinets full of good guns to be sure and keep the scum sucking coons from invadeing it again . it will once become what it was ment to be the white house not the black house

Daniel Myers| 7.2.10 @ 11:23AM

Boy, I hate to even agree with you because you are so stupid. Let us drop the pejoratives, racial slurs, etc. and focus on the arguments.

Are are you just to ignorant to make an intelligent argument yourself?

SAMMY BELL | 7.2.10 @ 2:53PM

well daniel myers you must be a coon lover. you can use all of the big fancy words that you want your the one that is stupid. people like you will be the first to surrender your guns. we never had this problem when george bush was in office. he lived in the real time world. better watch out that coon is going to bite you on your stupid ass . i bet you dont even know how to shoot a gun or protect your own dumb ass do

sammy bell | 7.2.10 @ 2:58PM

come on down to texas bitch and i will show you stupid . you will leave out with a boot stuck in your ass

sammy bell | 7.2.10 @ 3:20PM

Subject: FW: Three Cheers for Obama

I wonder if Kenya would like to have their BOY back????Guess not, hes doing so much here...

This has made another round and worth reading again.

In God We Trust

Three Cheers for Obama

This is so well put, I'm going to carry it around in my back pocket It's all in a NUT Shell
BEFORE YOU THINK I'VE FLIPPED MY LID, READ THE ENTIRE COLUMN!
Three Cheers for Obama!
That is right - I will say it. . .. . THANK GOD FOR OBAMA!

He destroyed the Clinton Political Machine - Driving a stake thru the Heart of Hillary's Presidential aspirations--something no Republican was ever able to do. Remember when a Hillary Presidency scared the daylights out of you!

He killed off the Kennedy Dynasty - No more Kennedys trolling Washingtonlooking for booze and women wanting rides home. American women and freedom are safer tonight!

He is destroying the Democratic Party before our eyes!
Dennis Moore had never lost a race - quit
Evan Bayh had never lost a race - quit
Byron Dorgan - had never lost a race - quit
Harry Reid - bid for re-election doesn't look good
These are just a handful of the Democrats whose political careers Obama has destroyed! By the end of 2010 dozens more will be!
In December of 2008 the Democrats were on the rise. In the last two election cycles they had picked up 14 senate seats and 52 house seats.
The press was touting the death of the Conservative Movement and the Republican Party.
In one year Obama put a stop to all of this and will probably give the house, if not the senate back to the Republicans.
Obama was named Gun Salesman of the Decade. He also has helped the ammunition industry so much that the factories are operating 24-7 trying to keep up with the demand.

He has completely exposed liberals and progressives for what they are.
Every generation seems to need to relearn the lesson on why they should never actually put liberals in charge.
He is bringing home the lesson very well!
Liberals tax, borrow and spend - check
Liberals won't bring themselves to protect America - check
Liberals want to take over the economy - check
Liberals think they know what is best for everyone - check
Liberals aren't happy till they are running YOUR life - check

He has brought more Americans back to conservatism than anyone since Reagan
In one year he rejuvenated the Conservative Movement and brought out to the streets millions of Freedom Loving Americans.
Name me one other time in your life that you saw your friends and neighbors this interested in taking back America!

In all honesty one year ago I was more afraid than I had ever been in my life. Not of the economy, but of the direction our country was going. I thought Americans had forgotten what this country was all about. My neighbors, friends, strangers proved to me that my lack of confidence of the greatness and wisdom of the American people was flat out wrong.

When the American People wake up, no smooth talking teleprompter reader can fool them!
Obama woke up these Great Americans
Again I want say Thank you Obama!

So, Lets Recap "2009".........what a year! WOW!!!
1. The American people inaugurate a half-Arab president with a total of 142 days experience as a US Senator from the most politically corrupt state (city) in America whose governors have been ousted from office. The President's first official act is to order the close of Gitmo and make sure terrorist’s civil rights are not violated. (Honest mistake?)

2... The U.S. Congress rushes to confirm a black Attorney General, Eric Holder, whose law firm we later find out represents seventeen Gitmo Terrorists. (An honest mistake?)

3. The CIA Boss appointee, Leon Panetta, has absolutely no experience.

4. We got the second most corrupt American woman (Pelosi is #1) as Secretary of State; bought and paid for.

5. We got a Tax Cheat for Treasury Secretary who did not properly file his own taxes for 12 years.

6... A Commerce Secretary nominee who withdrew due to corruption charges.

7... A Tax cheat nominee for Chief Performance Officer who withdrew under charges.

8... A Labor Secretary nominee who withdrew under charges of unethical conduct.

9... A Secretary HHS nominee (Daschle) who withdrew under charges of cheating on his taxes.

10. Multiple appointments of former lobbyists after an absolute campaign statement that no lobbyists would be appointed.

All this occurred just during the first three weeks. . . But who's counting?

America is being run by the modern-day Three Stooges; Barry, Nancy and Harry and they are still trying to define stimulus..."it's spending!!!"

The congress passes the $800,000,000,000 (that's $800 billion) pork-loaded spending bill where the government gives you a smidgen of your tax dollars ($13 per week), making you feel so good about yourself [stimulated], that you want to run out to Wal-Mart and buy a new Chinese-made HDTV!

Only with the Liberals...
Pray for our country.
Here's the good news though - Obama took Air Force One to Denver to sign the stimulus package, wasting as much as 10,000 gallons of fuel OR 24 JOBS FOR ONE YEAR.

Don't you just love hypocrites?
Obama went to the International Olympic Committee to have them choose Chicago for a host city, he failed.
Obama went to Copenhagen to lecture them on global warming, he failed
Obama went to New Jersey to promote the Democratic candidate for governor, he failed,
Obama went to Virginia to promote the Democratic candidate for governor, he failed.
Obama went to Massachusetts to promote the Democratic candidate for senator, he failed.

Speaking of praying, Obama has now been president for a full year and yet he & wife (first lady) Michelle, the Christian family they claim to be, have not attended church since the inauguration.

Obama is the 1st president in history who did not attend any Christmas religious observance.

And finally, he is the 1st president to remain on vacation after a terrorist attack.

In these times 'I'll keep my God, my freedom, my gun and my money.
Anyone that supports this insanity can keep "THE CHANGE".
Just Facts...............................yet I'm sure those on the Left will say this is no big deal daniel mayes looks like you fell right in with them

Jason| 9.2.11 @ 5:18PM

My Lord you need to get a life.

sammy bell | 7.1.10 @ 6:52PM

and by the way i hear tell that sonia sotomayor i s a full fleged puta in spanish that is a whore that is all we need is a stupid mexican puta making big decisions

Larry| 7.1.10 @ 9:48PM

"Claiming that the individual states have a right to regulate firearms, might have some merit if leftists hadn't previously purposely bastardized the 14th Amendment to essentially undermine 'self-government', the cornerstone upon which our Republic was conceived. Yes, it was leftists in their zeal to usurp states rights that has come back to bite them in the ass."

This observation from Publius's post expresses my views on the subject (mostly - it wasn't just "leftists" who created this problem; the pro-business judges of the Supreme Court in the late 19th and early 20th centuries are equally guilty of this tortured logic). Further, if in fact, the right to bear arms is not an "individual" right, why would it have been placed in the Bill of Rights rather than in the body of the Constitution itself, under, perhaps, the powers of the Congress?

george kimball| 7.2.10 @ 5:28AM

Gaw, the way lawyers can spew volumes of verbiage muddling the obvious.

Seems to me that a direct reading of the 2nd amendment leaves just one question, which of the two clauses is ordinate and which is subordinate.

If 'militias' is ordinate, it leaves open the possibility of a state disbanding a militia, ergo no subordinate gun right.
If 'bear arms' is ordinate, it is a justification of why there is a federal interest in the issue at all, followed by a declaration of a right to arms. So, the feds can't ban arms as a way of denuding populist militias.

The second interpretation is consistent, unambiguous, and exhibits the same passion for protecting liberty as the rest of the Constitution.

What mystery? What is hard to understand? Why all the ink? Personally I think it is the left's determination to find a way to end gun rights that has led to promotion of blather like the ambiguity of an ordinate first clause. Scalia and Thomas are so refreshing with the clarity and crispness of their thinking and writing.

I have wondered for decades why the left views themselves as enlightened and views the right as authoritarian and repressive when the libertarians are all on the right.

Jason| 9.2.11 @ 5:27PM

You seem really dumb. 1) Libertarians are not ALL on the right. 2) In light of the detailed discussion here, you clearly don't understand what this case decided. OF COURSE the 2A applies to the federal government, as was affirmed in Heller. This case about whether the 2A applies to states! People like you (and liberals) are the reason this country is falling apart.

george kimball| 7.2.10 @ 5:37AM

Hmm... now I'm the one muddling.

I meant to write:
If 'bear arms' is ordinate, 'militias' is a justification of why there is a federal interest in the issue at all, followed by a declaration of a right to arms.

Brian Shapiro| 8.17.10 @ 7:55PM

Even with the understanding that the Fourteenth Amendment incorporates rights with regards to state governments, I'm not sure about the logic by which its been applied to municipal governments. The Amendment clearly refers to what "States" can or can't do, not what cities or counties can do.

"No State shall make or enforce any law...", "nor shall any State deprive..." Is this just a matter of courts determining that the intent of the amendment was to apply to all lower levels of government?

Btw, a good source for the meaning of the Second Amendment is the debates in Congress on the Militia Act of 1792. (Debates and Proceedings in the Congress of the US (1834) p. 1851 ff). Referring to suggestions which might indirectly affect arms ownership, Rep. Jackson states his view that "the people of America would never be deprived of the privilege of bearing arms." Then, he goes on to describe the cases in which peoples have liberated themselves against oppressive governments because they had that right: the Swiss cantons, English cities defending themselves against Barons, in Ireland, etc. He states that a militia composed by the people is the best guard against the need to have a standing army.

He concludes : "In a Republic, every man ought to be a solider, and be prepared to resist tyranny and usurpation, as well as invasion, and to prevent the greatest of all evils --- a standing army."

The others present offer no objection. This debate took place in Feb. 1791, and the Bill of Rights was ratified in December of that year.

Jason| 9.2.11 @ 5:30PM

This would make sense if not for the fact that all municipal power (like federal power) is derived from the states.

Latest Headlines

Back in the Fray

Kyle Peterson|97 comments

The IRS Immigration Fraud Scandal

Jeffrey Lord|99 comments

Obama’s Climate of Intimidation

Matthew Sheffield|56 comments

Whither Suburbia?

Steven Greenhut|24 comments

The Woman Who Wrote Liberty Valance

Bill Croke|31 comments

Not Super, But Pretty Good

Aaron Goldstein|19 comments

The Loss of Trust

Thomas Sowell|32 comments

Foreign Policy as Farce

Jed Babbin|88 comments

The Spectacle Blog

Let Pitchers Throw Complete Games

Aaron Goldstein | 12:10AM

Thoughts on New U.S.-Taliban Peace Talks

Aaron Goldstein | 6.18.13

Thank You, Bobby Jindal

Matt Purple | 6.18.13

Buzzfeed Faces $3.6 Million Lawsuit for Copyright Infringement

Kaylin Bugos | 6.18.13

Democrat Dan Maffei Blames Budget Cuts for Girl’s Rape, Mother’s Murder

Robert Stacy McCain | 6.18.13

Pro-Life is Smart Politics

Rich Lizardo | 6.18.13

Gerson, Wehner, and the Losing Old Ways Crowd

Jeffrey Lord | 6.18.13

Are Young People Souring on Obama?

Matt Purple | 6.18.13

FLASHBACK TO: 1995

Pope Culture

By George Sim Johnston

A man of faith in a godless age is hitting Americans where it hurts.
Why the GOP Does Not, Like, Totally Suck

By P.J. O'Rourke

Mr. and Mrs. American Spectator Reader, let P.J. O’Rourke talk sense to your kids.
Dames at Sea

By John Corry
In the Absence of Guns

By Mark Steyn

In Britain, defending your property can get you life.
The Metaphysical Martini

By Werner J. Dannhauser
Counting the Costs of Clintonism

By Robert H. Bork

The debacle of this president’s administration is both a cause and a symptom of the decline of American values. Unless Congress impeaches him, that decline will go on unchecked. An eminent jurist surveys the damage and assesses the chances for the recovery of our culture.
Chuck McHagel

By George Neumayr

It won’t take long for conservatives to scratch this presidential wannabe off their 2008 scorecard.
The Legacy of Old John and Mother Fresh-Roasted

By Douglas Bartholomew
It’s the Best Time of the Year

By Mark Steyn

The American Christmas, like the songs that celebrate it, makes room for everybody under the rainbow. Is that why so many people seem to be hostile to it?
The Bush Crack-Up

By Brit Hume

Was the President done in by the economy, or by the politics of the economy?