Posted on 02/02/2012 11:27:56 PM PST by neverdem
A reply to Richard Epstein's take on the right to keep and bear arms
In McDonald v. Chicago, its landmark 2010 decision striking down that city’s handgun ban, the U.S. Supreme Court held that the Second Amendment right to keep and bear arms applies against state and local governments via the 14th Amendment, which declares: “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.”
If you ask most libertarians, they will probably tell you that McDonald was a great victory for individual rights. But that view isn’t unanimous. Most notably, the distinguished New York University law professor and libertarian legal icon Richard Epstein will tell you that the Supreme Court got it wrong.
In a new essay for the journal Defining Ideas titled “The Libertarian Gun Fallacy,” Epstein argues that most libertarians, including me, make the mistake of ignoring “the key federalism component of the Second Amendment.” As Epstein sees it, the Second Amendment isn’t about individual rights at all. Instead, its purpose is to maintain federalism by keeping “states free and clear of federal oversight on their own internal regulation of the use of firearms.”
Under that interpretation, the Supreme Court should have sided with Chicago and prevented 76-year-old Otis McDonald from getting a legal handgun for self-defense. As Epstein puts it, “It would be very strange indeed if the provision that is intended to preserve state independence from federal control should now be read as an individual right that binds the states as well as the federal government.”
The problem with Epstein's reading is that he seems to give too little weight to the text and history of the 14th Amendment, which was specifically added to the Constitution in order to provide a check on the powers of state governments, including giving federal courts the authority to nullify state and local laws that violate the Bill of Rights. The text of the 14th Amendment, the historical events leading to its ratification, and the statements of purpose made by its framers, supporters, and opponents all testify to the fact that it was created to protect individual rights—including the right of armed self-defense—on the state and local level.
Consider the amendment’s origins. After the conclusion of the Civil War, the former Confederate states began passing various laws that robbed the recently freed slaves (and their white unionist allies) of their political, economic, and civil rights, including the right to arms. Mississippi’s Black Code, for example, declared “that no freedman, free Negro, or mulatto…shall keep or carry firearms of any kind,” while Florida made it illegal for blacks to possess “any bowie-knife, dirk, sword, fire-arms, or ammunition of any kind” without a license. Needless to say, those licenses were not easy to come by.
In response to these violations, the Republican-controlled 39th Congress produced the 14th Amendment, which was ratified in 1868. One of the leaders of this process was Rep. John Bingham of Ohio, who authored the amendment’s first section (which I quoted from above). In a speech before the House of Representatives, Bingham explained that the rights protected by the amendment “are chiefly defined in the first eight amendments to the Constitution.” Similarly, Sen. Jacob Howard of Michigan, who introduced the 14th Amendment in the Senate and then shepherded its passage, declared that its purpose was “to restrain the power of the States and compel them at all times to respect these great fundamental guarantees,” including “the right to keep and to bear arms.”
Opponents of the amendment also shared in this understanding of the new limits it placed on state regulatory power—indeed, that’s basically why they opposed ratifying it in the first place. As one opponent at New Hampshire’s ratification convention argued, the 14th Amendment was “a dangerous infringement upon the rights and independence of the states.” Interior Secretary Orville Browning denounced the amendment in similar terms, arguing in a widely circulated 1866 letter that it would “totally annihilate...the authority and control of the States over matters of purely domestic and local concern.”
Keep in mind that before the 14th Amendment was added to the Constitution, none of the protections in the Bill of Rights were seen as applicable to the states. The First Amendment, which famously begins, “Congress shall make no law,” was quite explicit on that point. So the 14th Amendment altered the federalism component of more than just the Second Amendment. It transformed the entire Bill of Rights into a safeguard against abusive state and federal power.
That doesn’t mean federalism itself was abolished, just that the pre-Civil War federalist system was reconfigured. The federal government is still forbidden (at least on paper) from roaming beyond the confines of its constitutionally delegated powers. What’s different is that the states are now forbidden from infringing on fundamental constitutional rights, specifically including the right to keep and bear arms.
In light of this evidence, I respectfully dissent from Epstein’s judgment.
Damon W. Root is a senior editor at Reason magazine.
BTTT.
gun ping
Root takes a great shot. Bulls eye.
Well, that long winded argument was an excellent exercise in theory. Now lets apply it to reality.
If we essentially allow states to make their own laws that limit personal freedom as outlined in the Constitution, we have an even more terrifying problem than we do now.
You see, in these modern times the Federal Government is the money spigot to the states. And if states make law the Feds don’t like the threat always comes down from on high that the spigot might get turned off. We have enough problems with that issue already without the possibility of liberals like Obama and Pelosi pushing states to individually abolish 2A gun rights or 1A speech (including internet and radio) by dangling the carrot of govt funds in front of them.
So first we would have to reconstruct our Federal Government to spend money on almost nothing except national defense. (in our dreams!) Then assure it stays that way. (even MORE unlikely!) So that the feds would be unable to influence the individual decisions of the states. (Now we are in la-la land.) And then trust the states to be able to both make and un-make these laws as the citizens see fit? (This is a joke right?)
So let us not be too anxious to go down that road of open interpretation of the Constitution.
Even on a state by state basis the trend would be the gradual elimination of freedom by law. In other words what we have going on now, but even faster with no means of stopping it.
Sounds like one Hell of a stretch to me! My head sure won't work that way!
I don’t know what these “Libertarians” are prospectively looking forward to, but Root nails it that it is just plain historically wrong and shows exactly why. Seems to me this should have given rise to a plethora of 2nd amendment cases in the Reconstruction years, but maybe Ratty states, being wily, thought discretion was the better part of valor and didn’t push the directly Jim Crow gun laws, instead trying to get them in other guises.
This is a two edged sword, indeed. If the Federal decision prevails over the State, then State Rights are limited to not be greater than the Federal Government will allow, and as such (in a perfect world) could also limit the Rights of the citizens of a particular state or states.
At present, we need to reclaim the rights which are supposed to be protected by either or both, the latter dependent on your state's Constitution.
For instance, if the proposed Constitutional measure in North Dakota passes eliminating property taxes, could the Federal Government impose one anyway?
State Constitutions would be relevant again, without being overshadowed by the Federal Government. That could conceiveably provide for greater liberty, as well as despotism, depending on the population of the State.
They're making a new kind of table knife in the UK. It has a special tip making stabbing difficult. We probably aren't far behind them. Frankly, people who cannot trust themselves with a pointed steak knife are approaching the point where they are a waste of air.
Federal law ,state law , or natural law.
Who gets to decide what level of protection a citizen is entitled too.
Guns are great equalizer. Makes 90 lb as dangerous 300 lb thug.
Probably why pols,libs marxists and nanny staters hate 2 nd amendment arguments.
A well armed society is a polte society- and very safe society.
I would go with well armed society keeps ne’er do wells in check
I disagree. The Second Amendment is, and always was, self-binding by its own language to the States as well as the federal government, and perforce to the municipal governments as well.
these are your typical capital L libertarian nut jobs. Please do not lump the small l libertarians into this group...... we small l libertarians beleive in the constitution AS WTITTEN, not as interpreted...
No for two reasons. First, the 14th ammendment prevents States from passing laws taking away the rights granted under the U.S. Constitution. There is no mention of Federal property taxes (yet) anywhere in the Constitution. The U.S. Constitution is an enumeration of things that the Federal government cannot impose on individuals or States.
Now if you turn it around and have a situation where a State passes a law imposing an tariff on people with blue eyes, for example, that would be different.
A perfect example of this is our public school system in every state. Once the tainted finger of government gave them money, it was like flypaper trapping flies.
They soon gained total control of our public school systems and turned them into public indoctrination centers.
Same here - it's one of those deals where the Federal level made the edict that neither it nor the States could deprive us of the right to bear arms.
Well, he sorta makes a point for state sovereignty but in a half-ass way.The way I read it is that it would be okay for states to manage their own affairs regarding weaponry. That, of course, raises the question of the kinds of freedoms and restrictions a state might find suitable for itself.
Could a state reestablish slavery, for example? Then again, we have the opposite of what existed in 1860 where today the federal government is reinstituting slavery.
What will the states do about that?
We have all tumbled down Alice’s rabbit hole.
Good read.
Enjoyed it.
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