Libertarian ping! Click here to get added or here to be removed or post a message here!
(View past Libertarian pings here)
Posted on 10/02/2009 12:46:09 PM PDT by pabianice
Recently the Massachusetts Attorney General filed what is called an Amici Curiae (friend of the court brief) in the case of Commonwealth v. Richard Runyan. The brief is signed on to by a host of district attorneys and state officials. This is a case that is going before the Massachusetts Supreme Judicial Court regarding the Massachusetts firearm storage laws. In typical fashion of what we have come to expect of our state officials, the brief is full of support for state restrictions on innocent lawful citizens and an outright objection that the Second Amendment applies to the states.
One of the arguments from state officials is that the Supreme Court of the United States (SCOTUS) has never incorporated the Second Amendment through the Fourteenth Amendment (adopted in 1868) thus the states are free to abuse their citizens as they see fit.
For those who are not aware of what “incorporation” refers to, it refers to the process by which the Bill of Rights is applied to the states through what is called the “Due Process Clause” of the Fourteenth Amendment.
Throughout history the Bill of Rights has been incrementally incorporated. In other words, the entire Bill of Rights has not yet been established as protecting citizens against state governments. In fact it was years, even decades, after the Fourteenth Amendment before citizen’s civil rights were being protected from state governments. This history lesson is critical when reading the arguments of state officials who still wish to trample on the civil rights of lawful citizens.
In Attorney General Martha Coakley’s Amicus Brief she, like so many before, selectively chose to use ancient Supreme Court rulings in arguing against civil rights. As in so many writings of officials who attempt to subdue Second Amendment rights, she uses two well known cases as examples. In her brief she states: “For over 120 years it has been established that the Second Amendment is not incorporated through the Fourteenth Amendment and, thus, does not restrict the authority of the states to regulate firearms.” It is important to keep in mind that the Bill of Rights was never about regulations. It was about protecting the sacred civil rights of every lawful citizen of United States. So, when state officials argue that certain rights have not been incorporated, what they are actually telling us is that lawful citizens have no federal protection from state official’s tyrannical actions against our civil rights. That is truly the core of the incorporation argument.
The two cases that are continually used to argue the preservation of certain state tyranny in regards to the Second Amendment are United States v. Cruikshank (1876) and Presser v. Illinois (1886). Both cases ruled that in spite of the Fourteenth Amendment passed years before that the Bill of Rights did not apply to the state governments. Specifically, in the Attorney General’s brief, she uses a quote from Cruikshank that regards the Second Amendment as a “means no more than that it shall not be infringed by congress, and has no other effect than to restrict the powers of the National government.” What the Attorney General, and many before her, continually fail to mention is that this same case ruled against the First Amendment right to assembly. The Cruikshank ruling stated that the First "was not intended to limit the powers of the State governments in respect to their own citizens." In fact the right to assembly under the First Amendment was not incorporated until 1937 nearly seven decades after the Fourteenth Amendment was adopted.
In doing some research on the subject, I came across a Wikipedia article on the case, it can be found at: en.wikipedia.org/wiki/United_States_v._Cruikshank
Rather than defend the decision, as does our Attorney General and other public officials, the article actually stated that because of the decision: “In the short term, blacks in the south were left to the mercy of increasingly hostile state governments who did little to protect them. When Democrats regained power in the late 1870’s, they passed legislation (state) making voter registration and elections more complicated, effectively stripping blacks from voter rolls.”
I urge everyone to do a web search on Cruikshank and you will find article after article that blames the decision for the disarming and disenfranchisement of African Americans.
Is this the type of decision that our state officials should be using to defend their position on gun control? Would these state officials still defend the entire decision? If a public official is going to use rulings like Cruikshank to support their policy positions, then they must be held as supporting the entire decision and the consequences of it!
As a further example of how ridiculous it is use to use late 1800’s decision in defending an anti-civil rights policy decision, we must look at how long it took SCOTUS to officially incorporate other parts of the Bill of Rights. Here is a short list of some of our civil rights we take for granted and the year in which they were incorporated:
First Amendment Freedom of Religion 1940 Freedom of Speech 1925 Freedom of the Press 1931 Freedom of Assembly 1937
Third Amendment (Quartering of Soldiers in Private Homes) Has NOT been incorporated. Fourth Amendment Unreasonable Search and Seizure 1961 (Had been ruled to not be incorporated as late as 1949.) Fifth Amendment Double Jeopardy 1969 Self Incrimination 1964 Sixth Amendment Speedy Trial 1967 Public Trial 1948 Trial by Impartial Jury 1971 Right to Council 1963 Eighth Amendment Protection Against Excessive Bail 1982
And it goes on. How many people actually know that the 1970’s Equal Rights Amendment (ERA) never made it to the Bill of Rights because the states failed to ratify it? If our Attorney General and other state officials stand behind their argument, then they certainly wouldn’t support any of the issues in the ERA since it was never even ratified.
If we are to logically apply the Attorney General’s use of Presser and Cruikshank should we soon expect that Massachusetts will begin quartering National Guard persons in our homes because the Third Amendment has not been incorporated? Also lest we forget, that a woman’s right to vote (Nineteenth Amendment) was not part of the Bill of Rights until 1920.
The history lesson here is that it took nearly a century after Fourteenth Amendment for SCOTUS to officially recognize most of our civil rights as protecting us from our own state governments. The certainty is that one by one SCOTUS has in fact given protection to citizens from their own state governments. For sure the court has been painstakingly slow and very deliberate, but it has done it. To use 120 year old anti-civil rights case law to defend a draconian position on gun control speaks volumes about those who support such stances.
Why is this history lesson of incorporation so important? Simply put, every citizen should keep the following in mind. Any person, and especially public officials, that use the incorporation argument to defend a policy position is in fact defending that position via the exclusion of the Bill of Rights. Clearly stated, the people using that argument are in fact supporting a position to keep the Bill of Rights from applying to the citizens of the states. By fighting to keep the Bill of Rights from applying to certain citizens can only mean they are anti-civil rights activists.
For years, I have told our members that the people fighting against our Second Amendment Rights are not anti-gun, but in fact are anti-civil rights extremists. The fairly new incorporation argument against the Bill of Rights, and especially the Second Amendment, has proven that I was correct. The people supporting this argument can try to spin it anyway they want, but the plain fact is that anyone who fights against incorporation itself or uses the incorporation argument against certain rights is in fact anti-civil rights. Sadly, we can count among the anti-civil rights activists those public officials that have signed on to the Runyan Amicus Brief. If the signers object to being honestly labeled, perhaps they should be more aware of what they sign their names to.
They are: Massachusetts Attorney General Martha Coakley Berkshire District Attorney David Capeless Bristol County District Attorney C. Samuel Sutter Cape & Islands District Attorney Michael O’Keefe Essex County District Attorney Jonathan Blodgett Hampden County District Attorney William Bennett Middle District Attorney Joseph Early Norfolk District Attorney William Keating Northwestern District Attorney Elizabeth Scheibel Plymouth District Attorney Timothy Cruz Suffolk District Attorney Daniel Conley The Massachusetts Executive Office of Public Safety and Security The Massachusetts Executive Office of Health and Human Services The Massachusetts Department of Public Health
More articles on Cruiksank: U.S. v. Cruikshank: 1875 - Southern Racism Makes A Comeback
U.S. v. Cruikshank: 1875 - Supreme Court Delivers A Crushing Blow
United States v. Cruikshank
Very informative post. Thanks.
Bang
Coakley is running for Ted Kennedy’s Senate seat.
Hopefully if the USSC is doing its job, they'll put a stop to this crap once & for finally; OR, we'll all know for absolute certain the US Constitution's been rendered moot and the republic has been successfully overthrown.
When are those who live in Massachusette going to go on a general strike and get the attention of their state officials?
I realize they cannot all move out of the state- but a few instances of 1 or 2 day general strikes would get attention to their plight.
OTOH- who voted for these fools in the first place?
Somehow I doubt enough actual Americans live in Mass to successfully take up arms and right this travesty.
Bang indeed.
Remember things like the Bataam Death march and the holocaust.
NEVER EVER SURRENDER TO RETARDS, THEY WILL KILL YOU.
Plus they like the word surrender most as it kills sports spirit first in preference of whining and death.
RKBA is a Natural Right, and is thus not strengthened or diminished by human law. We were all born with the right given to us by God to defend ourselves. It is only in the context of Natural Law that our Declaration and Constitution form a coherent whole.
Republicans ought to be able to make this into a really great campaign - proving that it’s the Dems that are anti-civil rights. I hope there’s a strong conservative running against her!
1775 the British attempt to disarm the people of Mass sparking the American Revolution.
2009 the liberal establishment disarms the people of Mass to cheering and applause.
How times have changed.
Attorneys aren't on my favorite list (the bar associations are run by flaming homoliberal homobama lovers).
Any attempt to claim that the Bill of Rights was meant to apply to the states is simply false history. If we teach false history then it is difficult to claim truth is on our side.
Are ALL Mass. citizens hoplophobic homosexuals, or just the elected ones? If NOT all, then WHY are those politicians RE-ELECTED???
Since the Bill of Rights is part of the US Constitution, are you saying the US Constitution doesn’t apply to the states?
I think we should take the founding fathers at their word and not try to tie ourselves in knots with far out interpretations of the bill of rights.
A simple reading of the second amendment states that the right of the people to keep and bear arms shall not be infringed. Period. I doesn’t say “may not be infringed by the Federal government, but may be infringed by the states.”
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.