Sunday, December 23, 2012

The Founding Fathers Actually Believed States Could Ban Guns

Since the tragic shooting a little over a week ago at Sandy Hooks Elementary School in Newtown, Connecticut, there has been a significant amount of discussion on social media about gun control and the reach of the Second Amendment. Though such a discussion is important, it is just a tad bit irritating that many who are on the “pro-gun” side of the argument seem to have a warped view of what the Second Amendment was originally supposed to mean. These “pro-2nders” as I like to call them, assert that the Founding Fathers believed that the Second Amendment denied Government – both State and Federal – the ability to curtail and/or ban guns in their respected jurisdictions. Such an understanding of the “founder’s intent” is widely held, yet is extremely flawed.

Though it may come as a shock to some people, the drafters of the Bill of Rights (which includes the 2nd Amendment) never intended the Amendments to apply to the States. Instead, the Amendments were only meant to apply to the Federal Government. There are certain reasons for this, the main one being that the Federal Constitution was designed to be a limit on the Federal Government, while State Constitutions were designed to limit the reach and power of State Governments.  The fourth Chief Justice of the United States, John Marshall, in his groundbreaking decision Barron v. Baltimore, echoed this perspective on the relationship of the Bill of Rights to the States, stating,

“The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes.

To the Founders (many of whom did not want a Bill of Rights to begin with – see Federalist 84), applying the Bill of Rights to the States eliminated a very important element of Federalism. That is, the value of having different State governments which would embody the beliefs of each particular States population. New York would have different Constitutional protections than Georgia would, because the people of New York would value certain rights differently than Georgians. Instead of respecting these differences between States, applying the Bill of Rights to them would restrict the ability of individual citizens to enact Constitutional change. In a system where the Bill of Rights applied to the States, citizens would have to go through the cumbersome federal amendment process, rather than the relatively simple (in comparison) process of amending their State constitution. Such a restriction was viewed by the Founders as less than desirable, as Government gained its legitimacy through individual citizens having greater access to the channels of political power.

Since the Bill of Rights was attached to the Constitution in 1791, other amendments have been put into the Constitution, including the 14th Amendment. This amendment came into being during the Reconstruction phase of American history after the Civil War. Because the 14th Amendment’s purpose was to enhance national power rather than preserve notions of “state’s rights” (a key reason that the war was fought), the 14th Amendment gave the Supreme Court the ability to “incorporate” the Bill of Rights protections and freedoms to the States. Some rights, such as the 3rd Amendment’s protection against quartering soldiers in one’s home, still only apply to the Federal Government. Yet other rights, the Court has deemed to apply to the States. For example, in the 2010 decision McDonald v. City of Chicago the 2nd Amendment was fully incorporated and applied to the States.

Thus, when a “pro-2nder” attempts to claim that the Founding Fathers believed that every citizen should be able to “keep and bear arms”, kindly remind them that the Founders believed no such thing. Instead, they viewed the 2nd Amendment as limiting the power of the Federal Government, and believed that the States could do with guns as they wished. To assert otherwise completely ignores the intention of the Founders, as well as glosses over two hundred years of Constitutional Law.

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