This argument ignores the entirety of 14th Amendment case law, and in fact is indefensible on its face when applied to the Constitution as a whole. Would the author argue that a state can search my property without a warrant, or compel me to testify against myself, or sentence me to a cruel and unusual punishment? A state prosecutor who tried to argue that he could take such actions under state authority would be laughed out of court, yet this author believes that the 2nd Amendment somehow does not apply in the same way as do the 4th, 5th, and 8th.
Sad state of affairs when the People are failed to their Right to bear Arms for self protection..
D.C. Circuits 2nd Amendment Holding Too Weak to Survive
A federal appeals court overturned the District of Columbia’s long-standing handgun ban Friday, rejecting the city’s argument that the Second Amendment right to bear arms applied only to militias. In a 2-1 decision, the judges held that the activities protected by the Second Amendment “are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued intermittent enrollment in the militia.”
The court did not directly address whether the Second Amendment was “incorporated,†and thus, equally binding outside of the District of Columbia. Said the court:
While the status of the Second Amendment within the twentieth- century incorporation debate is a matter of importance for the many challenges to state gun control laws, it is an issue that we need not decide. The District of Columbia is a Federal District, ultimately controlled by Congress.
Although the issue here is not whether or not the Second Amendment arguments can be used to oust State and local gun bans or regulations, I will briefly discuss why it can never be so.
Incorporating the Second Amendment to disable State and local government internal regulation of firearms would be a feat similar to forcing a square peg into a round hole. The US Constitution had nothing to do with defining or extending personal rights and liberties to the people because that was reserved solely to States to achieve themselves. Said Madison:
The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
The Fourteenth Amendment did not change any of the above, in fact, its primary author, John Bingham, quoted Madison above, which than lead to the committee on Reconstruction reporting the Fourteenth Amendment because it had assured reluctant House members no retained authority of the State would be ousted.
Bingham officially proclaimed the proper legislative interpretation on January 30, 1871, stating those privileges and immunities under the first section were only those privileges and immunities embraced by article 4, section 2 prior to the Fourteenth’s adoption. Article 4 never embraced the first eight amendments, including the Second Amendment – and the Fourteenth did not add anything new to the privileges and immunities. Furthermore, Bingham made is too clear that the Fourteenth’s ‘Due Process’ was a direct import from the Fifth Amendment, and had retained identical application. (See here for more in-depth discussion of incorporation and the Fourteenth w/ citations.)
Essentially, it is impossible to find any factual foundation under the United States Constitution to support both judicially ‘incorporating’ the Second Amendment or, to find that it is an individual right conferred to all citizens in defiance of State or local laws. The court would have to pull off another Roe v. Wade to both circumvent the U.S. Constitution, the States, and history.
The court goes on to add, “the phrase ‘the right of the people,’ when read intratextually and in light of Supreme Court precedent, leads us to conclude that the right in question is individual.â€
The way it was explained in the several conventions, was that the “body of the people,†who were trained in arms, and who relied on their own weapons they kept to draw upon to arm themselves when called upon to do so. In other words, it is the right of the people as a “body of the people†in forming their militias that the Second Amendment acknowledges.
Under article I, Section 8, the Constitution speaks of “arming” the militia, but James Madison “observed that ‘arming’ as explained did not extend to furnishing arms.” Rufus King added, “arming meant not only to provide for uniformity of arms, but included authority to regulate the modes of furnishing, either by the militia themselves, the State Governments, or the National Treasury…”
George Mason argued: “The militia may be here destroyed by that method which has been practiced in other parts of the world before; that is, by rendering them useless–by disarming them.” Mason further adds: “Should the national government wish to render the militia useless, they may neglect them, and let them perish, in order to have a pretence of establishing a standing army.”
Hence, why we find the Second Amendment under the Constitution today.
The States always had exercised their right in regulating weapons within their limits, even after the adoption of the Fourteenth Amendment. As a pre-condition in restoring the eleven rebel States to their former representation within Congress, were required to have their State Constitutions declared in compliance with the Fourteenth Amendment by the same Congress who adopted the Amendment.
Section XIII of the State of Texas Constitution:
Every person shall have the right to keep and bear arms, in the lawful defense of himself or the State, under such regulations as the Legislature may prescribe.
Section 22 of the Florida Constitution:
The people shall have the right to bear arms in defense of themselves and of the lawful authority of the State.
Section 14 of the State of Georgia Constitution:
A well-regulated militia being necessary to the security of a free people, the right of the people to keep and bear arms shall not be infringed; but the general assembly shall have power to prescribe by law the manner in which arms may be borne.
In summary, no court will ever be able to justly hold that the Second Amendment either applies to the States, or confers an individual right to all citizens regardless of State or local laws to the contrary. It never has such any operation, and never will unless amended. The United States Supreme Court will have no choice but to reverse the circuits finding that the Second Amendment confers an individual right.
Gun rights can only be secured through State constitutions or local laws - to attempt to secure them through the Second Amendment is both foolish and weak.
3 users commented in " D.C. Circuits 2nd Amendment Holding Too Weak to Survive "
Follow-up comment rss or Leave a TrackbackI just don’t follow this guys argument at all.
The problem is that the Supreme Court would most like use “strict scrutiny” to justify State gun bans.
First of all, this post doesn’t appear to quote the article accurately as it is full of gramical errors while the actual article does not such errors.
I agree with the author that it is impossible to construe and individual right from the 2nd amendment. It never had such an construction and too late to invent one out of it. The author of the 14th amendment makes an overwhelmingly strong argument against incorporation from his official declaration of the meaning of the amendment in January of 1871.
I am certain the court will place strong weight on P.A Madison’s line of argument.
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