But why should the commerce clause be proof against the second amendment when it is part of the unamended Constitution and the amendments [of the Bill of Rights] were enacted in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added
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The Second Amendment is such an additional restriction, saying 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.
This restriction should therefore logically restrict the commerce clause (as well as the general taxation clause) so that neither could be applied against arms.
“The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the “high powers” delegated directly to the citizen, and `is excepted out of the general powers of government.’ A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power.” [Cockrum v. State, 24 Tex. 394, at 401-402 (1859)]
Federal court decision: “A state cannot impose a license, tax or fee on a constitutionally protected right. Murdock vs. Pennsylvania 319 US 105 (1942).”
great point. one part of the constitution can’t restrict a part of the constitution that explicitly states it can’t be infringed. amendments may change parts that don’t have such protections, but not the ones that do. and the amendment process is hard to do even then.