“The United States Supreme Court has now refused again to decide this big fight between when you interpret the Second Amendment, whether it’s the year of our Lord 1791 when it was written, or is it 1868 after the Civil War, with the adoption of the 14th Amendment,” constitutional attorney and host of The Four Boxes Diner Mark W. Smith informed his followers Monday. “After the Civil War, there were three constitutional amendments that were adopted to basically expand the Bill of Rights … to all Americans, not just as applied against the federal government, preventing the federal government from stopping you from exercising these rights, but also making sure that states and local governments could no longer impact or infringe on your rights as well.”
The technical holdup is essentially one of emphasizing due process and ignoring privileges and immunities, which to a layperson seems a bit like arguing how many angels can dance on the head of a pin. Legal precedents aside, there’s a more basic argument: The Constitution and Bill of Rights were ratified based on the understanding of the people and their representatives with debates based on arguments posited in the Federalist and Anti-Federalist essays. There has never been a magic crystal ball that allows decisions to be based on what will happen in the future.
And while it’s inarguable that the Fourteenth Amendment mandates “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; nor deny to any person within its jurisdiction the equal protection of the laws,” another basic question needs to be explored:
Would the Framers have thought it necessary?
“The Founders Intended for the Bill of Rights to Apply to the States,” Second Amendment writer Brian Puckett concluded back in 2001. “[I]f we set aside any Supreme Court decisions relating to that matter, we are left with the writings of the Founders and – most important of all – the actual legal document they produced, the Constitution and its first ten Articles of Amendment.”
“Who is this guy and what are his legal qualifications to make such an assertion?” seems a legitimate question only if one ignores the arguments he makes and the questions he raises, which then makes such a challenge ad hominem, that is, a logical fallacy. What has to be refuted and dismissed are his assertions, not the man, and he offers some that naysayers need to refute, if they can.
Proof of this understanding is contained in a passage from William Rawle. In his book View of the Constitution, published in 1829, Rawle wrote about the Second Amendment: “No clause in the Constitution could by any rule of construction be conceived to give the Congress a power to disarm the people. Such a flagitious attempt could only be made under a general pretence by a state legislature. But if in any pursuit of an inordinate power either should attempt it, this amendment may be appealed to as a restraint on both.” [emphasis added].
In other words, Rawle says that the Second Amendment may be used as a legal argument to quash an attempt by either Congress or a state legislature to disarm the people. It cannot be any clearer that Rawle – a contemporary of the Founders and the man to whom George Washington offered an appointment as the first U.S. Attorney General – understood that the Second Amendment (and by extension the entire Bill of Rights) applied to the state governments as well as to the federal government. Keep in mind that View of the Constitution was the standard constitutional law text at Harvard until 1845 and at Dartmouth until 1860.
Rawle’s was not the only voice.
“The man most involved in writing the Constitution, James Madison [argued] for adding a national bill of rights by pointing out that some states have insufficient bills of rights,” Puckett added. “The logical implication is that this national bill of rights will correct the problem of states that have insufficient bills of rights. Therefore, he is acknowledging that the national bill of rights will apply to the states.”
There’s another historical/legal example – from the Supreme Court — that predates the Fourteenth Amendment that must also be considered, and that was in the Dredd Scott decision, which noted:
“It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.” [Emphasis added]
Stipulating that I’m not a lawyer versed in the intricacies of case law, just a citizen who somewhat knows how to read, I’ve seen those who are qualified admit stare decisis über alles may not be what the Founders intended, particularly when it comes to the Bill of Rights. So don’t take this as a critique of admittedly more formally educated Second Amendment scholars. I’m not trying to start a fight.
Consider it instead a hope that they’ll add the Rawle, Madison, and Scott examples to the arguments they’ll want the High Court to consider – or cogently explain to the rest of us why they’re irrelevant in determining Founding intent.
Supreme Court Rules Federal Drug-User Gun Ban Falls in US v. Hemani
Seventh Circuit Upholds Illinois AR-15 Ban Days After Supreme Court Takes Up Same Fight
About David Codrea:
David Codrea is the winner of multiple journalist awards for investigating/defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. He blogs at “The War on Guns: Notes from the Resistance,” is a regularly featured contributor to Firearms News, and posts on Twitter: @dcodrea and Facebook.
The US Supreme Court just rendered this question moot in the Wolford decision (on the Hawaii vampire rule). Look at the last page of the syllabus. It’s also in the main discussion of course but somebody in the clerk’s office thought it was important enough to include in the syllabus: past racist gun laws (and presumably, laws discriminating on the basis of religion or national origin too) are flat banned from text, history and tradition analysis under Bruen. Hawaii tried to use snippets of the black codes from Louisiana, Reconstruction era. The Supreme Court made absolutely clear that that’s not… Read more »