No second amendment for you

There’s been lots of predictable push back against the calls for new gun regulations by claiming that the second amendment should be read as to guarantee a universal right to own firearms, which if true would make just about any form of meaningful regulation a pointless and illegal exercise. Leaving aside for the moment that one of the defining attributes of a democracy is that there are no absolutes, that as society changes, so too must the government that serves it (giving rise to things like amendable Constitutions), that interpretation completely falls apart with a short history lesson.

The founders weren’t unanimous about enshrining rights in the Constitution because they feared that it would tempt regulation. They weren’t wrong, but the Bill of Rights came into being anyway. That is why with a few exceptions, most amendments read plainly to restrict government power. The fifth amendment doesn’t literally say that you have a right against self incrimination, it says no one “shall be compelled in any criminal case to be a witness against himself”.

What’s critical to understand is how “limited government” the founders were, such that they would never had listed all these rights that they wanted Americans have that were to be enforced by the federal government, which to them would have represented a massive power grab against state sovereignty.

I know. The irony, right?

Anyway, it was settled law that the Bill of Rights only applied to the federal government until the 1920s and the founding of the doctrine of incorporation. Before the turn of the century, the federal courts had never recognized the Bill of Rights as limiting state power. In fact, the Supreme Court explicitly ruled in 1833 that the Bill of Rights only applied to the federal government.

There’s been disagreement in the courts since then about which amendments should be applied against the states and why. That’s a complex and legitimate debate to have. But what’s not up for debate is that none of the first eight amendments had been applied against the states until about a century ago, and the second amendment in particular had not been until just 2008. That’s one of the reasons why Heller vs. D.C. was controversial, it set aside 220+ years of precedent and the will of the founders to essentially invent a right that didn’t previously exist, in what could only be described as an act of judicial activism.

It’s awkward to say the least that gun rights advocates must ultimately side with judicial liberals that believe in a living and breathing constitution, rights-creating by the bench by reading between the lines, and activist rulings. They must also believe in a strong national government that can bulldoze states rights. Because without those four things, we wouldn’t have the incorporation doctrine, the ruling in 2008 that applied the 2nd against the states, or the seemingly universal gun rights that followed.

If you don’t believe any of this, ask yourself two simple questions. Why did the founders mention militias in the second amendment, which during a time of war would be under federal control, and why do so many states have an equivalent of the first amendment in their own state Constitutions?

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