by Jack Hunter, from The American Conservative

When the City of Chicago banned all handguns recently, countless Americans rightly cried foul. When it looked like the Supreme Court might overturn the ban, gun-rights advocates cheered the decision. But while their heart is in the right place, their enthusiasm is not, as what gun-rights advocates are really cheering is the federal government assuming even more power.

The Bill of Rights was never intended to be a list of individual rights, but a list of things the federal government could not do. Patrick Henry and his anti-federalist friends did not want an all-powerful “national” government and insisted the Bill of Rights be added to the Constitution in order to make crystal clear that the federal government’s powers were few, limited, and only those delegated to it by the states.

The rights to free speech, freedom of religion, and to keep and bear arms were rights the federal government could never take away from the states, allowing states to regulate speech, religion — and yes, firearms — as each saw fit. Today, the Founders would declare federal gun legislation like the Brady Bill to be unconstitutional, pointing to the 2nd, 9th, and 10th amendments. The Founders also would have declared Chicago’s gun ban constitutional (albeit stupid), also pointing to the 9th and 10th amendments. The 2nd amendment does not apply to the Chicago gun ban because the federal government is not involved — nor should it be.

Constitutional historian Kevin Gutzman put the Founders intentions into perspective during an interview with radio host Mike Church: “when we have a Second Amendment, essentially what that means is that the federal government is to have nothing to do with your ownership and use of weapons. But that doesn’t mean that nobody is able to regulate your ownership and use of weapons. If neither the federal government nor the states can regulate ownership of weapons, are we saying that retarded people and insane people and felons and children can all own weapons? Clearly some level of government has to be able to regulate the use and possession of firearms.”

So how can the Supreme Court overturn Chicago’s ridiculous, yet constitutional law using the 2nd amendment? Also, why should conservatives — typically champions for gun rights — be opposed to this court decision? Because this decision would trample the most important right of all — that of the states to limit the power of the federal government.

Reporting on the Chicago controversy, a Washington Times headline this week read, “Gun rights lawyer gives hope to liberal causes: 14th Amendment argument opens to gay rights, abortion.” Using what’s called the “incorporation doctrine,” the Supreme Court has argued that the 14th Amendment, which was meant to protect the basic rights of former slaves after the War for Southern Independence, magically turned the Bill of Rights into a list of individual rights.

If this is true, as the Supreme Court is about to declare once again in the Chicago case, then federal law trumps state law anytime the court sees fit, completely ignoring the Bill of Rights’ intended purpose of limiting federal authority. What some consider a small victory for gun rights is actually a grand defeat for limited government. If Patrick Henry were alive, he would likely be reaching for his musket.

What happens when the court decides that gay marriage is a “right,” or that healthcare is a “right,” two concepts many liberal Democrats already subscribe to? States will be powerless to stop the invention of these and other new “rights” and completely at the mercy of federal judges. Reported the Washington Post: “Justice Stephen Breyer needled the majority about its rather situational view of federalism when it comes to ‘incorporating’ the Second Amendment to make it binding on states rather than just the federal government. ‘Without incorporation, it’s decided by state legislatures,’ he said. ‘With, it’s decided by federal judges.”

In his book Original Intentions: On the Making and Ratification of the United States Constitution, conservative author Mel Bradford warned against embracing unconstitutional court decisions based on situational whims: “Legitimate change in the Constitution can only be made by amendment-not by the will of the High Court, its well-meaning, teleocratic misuse of its originally narrow and specific role within the law. For if it does not keep the law, who will? And if the law itself is personalized or politicized at its source, who among us is secure?”

I’m not a constitutional scholar. In fact, I’m not a scholar of any kind.
My observations, whether on talk radio or in my columns, are the thoughts of an average American with an average education attempting to deduce simple truths about our nation and its government.

But one need not be an expert of any sort to recognize that our federal government has long trended toward increased centralization, sometimes in the name of the Constitution itself.

As Bradford noted, if the federal government is to be the sole arbiter of its own power then there really are no limits to that power, and those who still believe in the Founders’ constitution should not cheer its destruction by championing increased centralization over local control, federal dictates over states’ rights and “conservative” victories that are not.

The “Southern Avenger” Jack Hunter is a conservative commentator (WTMA 1250 AM talk radio) and columnist (Charleston City Paper) living in Charleston, South Carolina. See his blog.

Copyright 2010, The American Conservative

Kevin Gutzman, best-selling author and expert on American Constitutional history, discusses the 14th Amendment and the Incorporation Doctrine, how the doctrine has given us government by judiciary instead of government by representation, the Due Process clause, Substantive Protections vs. Due Procedure, the original intent of the 14th Amendment, how the courts changed that meaning over the ensuing five decades, the Bill of Rights as a limitation on the power of Congress, how the incorporation doctrine has turned the principles of federalism on its head, representative government vs. government by “experts,” Privileges or Immunities and The Slaughter-House Cases, rights of State citizenship, how James Madison warned that those in government would tend to use and expand power, some of the greatest violations of the Constitution under the doctrine of incorporation, why federalism and decentralization is a better system to secure liberty, and more.

Mentioned in this Show

KevinGutzman.com

The Politically Incorrect Guide to the Constitution

Who Killed the Constitution

Virginia’s American Revolution

Slaughter-House Cases

Lawrence v Texas

Since the days of Ronald Reagan and Edmund Meese, the Republican Party’s position has been that judges should be bound by the people’s understanding of a particular constitutional provision at the time they ratified it.  This notion goes under the name “originalism.”

Recent events, including the Republican response to President Obama’s nomination of Judge Sonia Sotomayor to the Supreme Court, reveal that the party is a highly unreliable vehicle for this principle.

So, for example, the Republican Party decried the Supreme Court’s decision in Kelo v. City of New London (2005) that the Fifth Amendment did not bar New London, Connecticut, from seizing private property for a public purpose. According to the stock criticism, the Fifth Amendment left open the possibility of government seizure of private property only for public use, not for public purpose.

What this criticism omits, however, is that the Fifth Amendment, like the rest of the Bill of Rights, is a limitation solely on the Federal Government.  Since the government of New London is not the Federal Government, an originalist reading would hold the Fifth Amendment inapplicable.

Just try explaining this to a Republican audience. Not only do Republicans argue for application of the Fifth Amendment’s Takings Clause against state governments. They also vociferously insist that the Second Amendment is enforceable against the states.

In fact, Republican lawyers have recently found success in persuading some federal judges for the first time to treat the Second Amendment as enforceable against the states. It once was only the left-most Supreme Court advocates (for example, those who argued against prayer in public schools) who argued for the Incorporation Doctrine. Now, however, this is a “conservative” position and “conservative” public-interest lawyers take this position before the Supreme Court.

The Bill of Rights as an obstacle to federal infringement on state authority was only one element of the underlying principle of the U.S. Constitution. This is “federalism,” the notion that the states (meaning the sovereign people of each state) had delegated only particular powers to the Federal Government. In the Reagan era, with Edmund Meese as attorney general and Charles Cooper as assistant attorney general, this principle received an emphasis it had not since 1937.

Now, however, the Republicans take an energetic position on the wrong side of the question. So, for example, Sen. John Thune of South Dakota recently offered his Concealed Carry Amendment to a defense authorization bill.

Under this amendment, if someone had a right to carry a concealed weapon in his home state, he would be given federal authorization to carry it in states he might visit. What constitutional provision empowers Congress to force this policy upon the states? Don’t be silly.

Of course, the question of gun rights is not the only currently live one that excites core Republican voters. Therefore, it also is not the only one that prompts Republican office-holders to ignore the principle of federalism.

In 2006, the editors of National Review endorsed the notion of an amendment to the Constitution defining marriage. Why should the Federal Government impose a single definition on all the states, who have always had complete control over such questions? Because federal judges cannot be restrained, those editors reasoned, from legislating their own definition.  In other words, if you don’t trust one fox, put the whole fox family in charge of the chicken coop.

Alas, to argue for augmenting federal authority seems to be what the editors of National Review reflexively do. Who cares about the Tenth Amendment’s reservation of all undelegated powers to the states?

No wonder Democrats and pro-choicers generally say that the Republicans are hypocritical in invoking the principle of federalism against Roe v. Wade. What is a “principle,” they rightly wonder, that is only invoked when it cuts in the desired direction?

That is a good point.

It gains additional force from the fact that Republicans do not even invoke it consistently across all abortion disputes. In Gonzales v. Carhart (2007), the Supreme Court upheld a congressional ban on partial-birth abortion. In a concurring opinion in that case, Justices Antonin Scalia and Clarence Thomas noted that the Commerce Clause, as properly understood, did not give Congress power to enact such a ban.

However, they said, so long as the Court’s unfounded Commerce Clause precedents stood, Scalia and Thomas would join in extending them to this new area.

Principled originalism in action!

Republicans also generally join in opposing pro-black discrimination in government hiring, firing, promotions, contracting, and other such decisions (and cheered the recent Ricci decision). They do this on the ground that the Equal Protection Clause of the Fourteenth Amendment requires color-blindness on the part of government.

This is of course a morally appealing argument. But the issue is not whether the Republican policy positions are appealing; that is a legislative question. The question is whether the Republicans’ constitutional position has merit.

Here, as in the other areas described above, it does not. The Equal Protection Clause was not intended as a wide-ranging mandate for government equality, but to have much narrower application. The Supreme Court long recognized this fact. Conservatives do their reputation for intellectual honesty no favors by arguing for extension of unfounded precedents.

In short, then, Republicans generally do not stand for principled adherence to originalism, which once was called “the Constitution.” Across a range of questions, they mirror their Democratic opponents in advocating judicial legislation of their preferred legislative outcomes.

Kevin R. C. Gutzman, J.D., Ph.D., Associate Professor of History at Western Connecticut State University, is a New York Times best-selling author.  He’s written Virginia’s American Revolution: From Dominion to Republic, 1776–1840, The Politically Incorrect Guide to the Constitution, and as co-author with Thomas E. Woods, Jr., Who Killed the Constitution? The Fate of American Liberty from World War I to George W. Bush.

Copyright 2009, Kevin R.C. Gutzman. Published with permission of Taki’s Magazine

There are few topics that can divide people who are normally ideological bedfellows like the legal doctrine of the “incorporation” of the Bill of Rights against the states and the Second Amendment. This subject is rearing its head again with the upcoming appointment of a new Supreme Court justice as well as federal courts’ recent conflicting opinions in regards to the Second Amendment.

The Wall Street Journal reports that on June 2nd, “A federal appeals court in Chicago ruled … that the Second Amendment doesn’t bar state or local governments from regulating guns, adopting the same position that Judge Sonia Sotomayor, President Barack Obama’s nominee to the Supreme Court, did when faced with the same question earlier this year.”

This ruling contrasts with a recent ruling by “the U.S. Ninth Circuit Court of Appeals in San Francisco … that the Second Amendment is incorporated against the states and local governments” — in other words, states and local governments are bound by the Second Amendment. Which court is correct?

To understand the debate in this topic, it helps to briefly review constitutional history. When the Constitution was first proposed, opponents of the new document criticized it for lacking a bill of enumerated rights, which were common in virtually every state constitution of the time. In response to these complaints, proponents of the new Constitution agreed to add a series of amendments in the first Congress that would codify restrictions on the federal government to infringe certain fundamental rights. The resulting first 10 Amendments, collectively referred to as the “Bill of Rights,” were ratified on December 15, 1791.

It is important to note two little-known historical facts regarding the proposal and ratification of the Bill of Rights. Alexander Hamilton, himself a prominent advocate of a liberal reading of the necessary and proper clause as well as a loose construction of the Constitution, argued that a Bill of Rights would be dangerous because it would imply that without such an enumeration of rights, the new government might actually have the power to infringe on these rights and might even now open the door for the government to regulate in these areas. In Federalist # 84, Hamilton wrote:

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? … I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government.

Hamilton basically was saying that the national government lacked the power to do any of the things that the proposed Bill of Rights were prohibiting, and codifying these restrictions might lead some to argue that the national government could actually regulate in those areas, which he felt was completely unconstitutional.

In addition, James Madison, widely regarded as “The Father of the Constitution,” wanted to have the Bill of Rights restrictions to be held against the states but was rebuffed in this effort because of widely held reservations to further empower the new government over the states. The first Congress refused to even submit such a proposal to the states for ratification because it was so unpopular. As a matter of fact, numerous states had gun-control laws on the books at the time, as well as state-chartered religions. It was not that the citizens were necessarily opposed to state involvement in these matters but rather did not want any federal intrusion.

These two historical facts illustrate that, at the time of the ratification of the Bill of Rights, it was recognized by the Framers and Ratifiers that the national government had no authority to enforce the Bill of Rights against the states, and whatever authority it did have was clearly delineated in the text of the Constitution itself.

Therefore, the Bill of Rights did not give the national government any new powers but simply reiterated important restrictions upon it and not the states. This understanding is consistent with the position that not only does the Second Amendment protect an individual “right to bear arms” against federal action but also that the national government lack any power whatsoever to regulate within this area. Additionally, the states are free to regulate (or not regulate) in that area based on their own state constitutions.

The fact that the Bill of Rights did not apply against the states was not modified until after the ratification of the 14th Amendment and the judicial creation of the incorporation doctrine. The incorporation doctrine refers to the court selectively “incorporating” certain amendments in the Bill of Rights against state governments via a liberal reading of the 14th Amendment — completely contrary to the original understanding at the time of its ratification as explained by widely respected legal scholar Raoul Berger in Government by Judiciary: The Transformation of the Fourteenth Amendment.

As the late Congressman Larry McDonald explained, the rationale behind the incorporation doctrine “runs completely contrary to thoughts and purposes of the original framers…. Their intent was to limit the rights and powers of the federal government, not to help expand them.”

The courts liberal interpretation allowed the federal courts to widen their jurisdiction and judicially review numerous state laws. Some libertarians welcome this development in constitutional history as a great opportunity to spread freedom because it gives advocates of individual liberty “two bites at the freedom apple — one under his state constitution and one under the U.S. Constitution.” Sadly, the constitutional record of incorporation is not something many advocates of individual liberty can be proud of.

Constitutional historian Kevin R.C. Gutzman details the sordid history of the incorporation doctrine:

This is what the Incorporation Doctrine has given us: in place of reservation of these areas of law to state governments for regulation via legislative elections, we get seizure of control over them by unelected, unaccountable, politically connected lawyers (that is, federal judges) who purport to substitute “reason” for the (one infers) “unreasonable” regulations crafted by elected officials…. It was under the cover of the Incorporation Doctrine that federal courts recently invented a right of child rapists not to face the ultimate penalty for their crimes.  It was under the cover of the Incorporation Doctrine, indeed, that a Supreme Court majority for several years banned capital punishment altogether. It was under the cover of the Incorporation Doctrine that the Supreme Court eliminated state prohibitions of various types of pornography. The Incorporation Doctrine also underlies the Court-created ban on prayer, even on moments of silence, in public schools. The Incorporation Doctrine has allowed federal courts to invent rights to burn flags, ban invocations at high school graduations, and establish essentially a national code of “acceptable” punishments.

Furthermore, it was with the help of the incorporation doctrine that the “politically connected lawyers” on the court were able to invent “penumbras” giving rise to the infamous Roe v. Wade decision, and there were even discussions at the height of judicial activism to engrain a right to a minimum wage within constitutional law. Libertarians should be careful what they wish for because the “interpreters” on the court do not always see eye-to-eye with their vision of liberty.

Ironically, libertarian proponents of incorporation who usually are almost universally opposed to state power, let alone massively centralizing power in a super state, are in effect advocating the use of a larger, more powerful central government (via its court system) to force smaller governments to “be more free” without recognizing the fact that freedom means different things to different people. Such a contradictory line of thought is in direct conflict with the proud Jeffersonian decentralist tradition of those who founded our constitutional republic.

This leads us back to gun-rights activists who are currently expending numerous resources trying to get federal judges to incorporate the bill of rights against the states. Ironically, years of money spent trying to get federal judges to advance the cause of gun rights resulted in the disappointing Supreme Court decision in District of Columbia v. Heller where the “conservatives” on the court acknowledged that the Second Amendment protects an individual right “to bear arms” but that right is not “unlimited” and there is still room for reasonable restrictions on gun control.

As renowned constitutional attorney Edwin Vieira, Jr. wrote last fall in The New American, “Could Heller allow gun regulation to the point that the regulation could become a prohibition for all practical purposes? What effect will it have, if any, on existing or future gun laws in other jurisdictions throughout the country?”

The Heller decision was disheartening to gun rights advocates who believed that vast amounts of money spent on endless legal challenges would engrain an unlimited right to gun ownership in our constitutional law. Related efforts to incorporate the limited protections of Heller against the state will face similar frustration.

Those who put their faith in “politically connected lawyers” to uphold their rights and advance the cause of freedom will continue to be disappointed. Perhaps these activists will now realize that federal judges are not reliable friends of individual liberty and instead will focus their energy on a much more realistic goal of making Congress constitutional.

Patrick Krey works in finance and has an M.B.A., J.D. (law degree), an L.L.M. (masters of law) from the University of Buffalo, and is an Attorney admitted to practice in New York State. He is also a freelance writer – his work has been published online at JBS.org, PrisonPlanet.com, Antiwar.com and in The New American bi-weekly print magazine. He is also the host of the online radio show The Constitutional Coalition.

With its decision in Nordyke v. King last week, in which the recent Supreme Court Heller decision was applied to state law, the Ninth U.S. Circuit Court of Appeals took another step down the long road of “incorporating” the Bill of Rights into the Fourteenth Amendment’s Due Process Clause.

In doing so, it continued down the path toward completely inverting the model of government to which The People agreed when they ratified the Constitution.

The Preamble to the Bill of Rights says, in part, “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… RESOLVED … that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States ….”

(Are you surprised that you have never read this before?  That it is not usually included in printed versions of the Constitution?  What accounts for that omission, do you think?)

Unsurprisingly, then, the First Amendment begins by saying, “Congress shall make no law.”  Why?  Because, as stated in its Preamble, the purpose of the Bill of Rights was to ensure that the Federal Government did not abuse its powers.

So widely was this understood to be the purpose of the Bill of Rights that in Barron v. Baltimore (1833), Chief Justice John Marshall for a unanimous Supreme Court ruled that the Bill of Rights limited only the powers of the Federal Government, not those of the states.  This was the only significant constitutional decision in which Marshall ever ruled against federal authority.

James Madison endeavored in the First Congress to include in Congress’s proposed bill of rights an amendment providing for federal judicial oversight of states’ behavior in respect to certain rights.  His effort was unavailing.

Thus, when “originalist” Antonin Scalia announced that the First Amendment establishes a right to burn a flag enforceable by federal courts against state authorities, he showed exactly how “originalist” he really is.

When Randy Barnett took to the pages of The Wall Street Journal last week to state that federal protection of all individual rights against state infringement was part of the original plan of the U.S. Constitution, he revealed how concerned with the consent of the governed he really is.

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