Sunday December 30, 2012

There is a great degree of discussion now concerning gun laws. Much of this discussion revolves (as it must) around the Second Amendment. The NRA, for instance, would have you believe that there is a constitutional right to "keep and bear arms." Actually, what the U.S. Constitution does is prevent the national government from interfering with any such right. The Bill of Rights imposes no such restriction on the states (Barron v. Baltimore -- 1833).

But we know the Bill of Rights has been applied to the states. How so? Because, gradually, case by case, the Supreme Court has decided that, counter to the original intent of the founders, we would be a better society if it (the Court) was able to somehow make the first eight amendments applicable to the states. For instance, in Prudential Insurance Co. v. Cheek, (1922), the court affirmed that the First Amendment’s right of freedom of speech did not apply to the states. Three years later it reversed direction, ruling (in Gitlow v. New York) that the freedom of speech clause did apply to the states. It somehow found its rationale in the term "liberty" in the 14th Amendment’s due process clause.

In Palko V. Connecticut (1937), Justice Cardozo, again playing off the term "liberty" in the due process clause, declared that the concept of "ordered liberty" allowed the court to decide which provisions of the Bill of Rights should be enforced against the states. This is known as "selective incorporation" (Justice Black claimed the Framers of the 14th intended to fully "incorporate" the Bill of Rights into the amendment but the court has never accepted his theory).

The latest example of the court’s judicial sleight-of-hand was McDonald v. Chicago (2010) where the court finally got around to deciding that the 2nd Amendment applied to the states. Four Justices relied on the "liberty" ploy. Justice Thomas (rightly) rejected this reasoning but managed to find his justification (equally as implausible) in the privileges or immunity clause of the 14th.

Where have the states been while all this has been going on? Good question. It appears that they haven’t even been aware that their sovereignty was being nullified by the court. If the states had better understood federalism and defended it, all this recent talk of secession (ridiculous on its face) would never have risen.

The bottom line is that gun laws were intended to be the prerogative of the states. The reason they aren’t is because the court has acted in violation of the Constitution. Unfortunately, many if not most Constitutional scholars believe in a "living Constitution" (original intent is of little import) and have condoned most of the court’s transgressions because they conform to the scholar’s own preferences.

The irony is that if the court had not usurped Massachusetts’ sovereign authority, the citizens of the state could instruct their legislature to enact whatever restrictive gun laws the public deemed appropriate, up to and including the banning all private firearms. Maybe gun-control activists should become better acquainted with the 10th Amendment.

JAMES W. COTTER

Dalton