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7th Circuit contradicts Nordyke, rules that 2nd Amendment doesn’t bind states
June 5, 2009 | Tagged anti-Second Amendment, Culture War, D.C. v. Heller, NRA v. City of Chicago | 1 Comment
In a decision that may set up another gun rights battle in the Supreme Court, the Seventh Circuit ruled that the Second Amendment does not apply to the states. The case is NRA v. City of Chicago, which was decided this week. One day after the ruling, the NRA filed an appeal. And so it goes.
I’m not an attorney, but some people who are, take issue with the Seventh Circuit’s virtual dismissal of the “Due Process” Clause in the Fourteenth Amendment. Constitutional scholar Eugene Volokh offers his opinion here.
For me, personally, as a non-lawyer, there are several quotations that bear strongly on the argument. The first is from William Rawle, who was appointed U.S. Attorney for Pennsylvania by George Washington. Rawle reportedly turned down Washington’s offer to name him Attorney General of the U.S. In writing about the Second Amendment, Rawle asserted:
“The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.”
In the Supreme Court Decision, Presser v. State of Illinois, 116 U.S.253 (1886), the court cited U.S. v. Cruikshank, 92 U.S. 542. The Cruikshank opinion said that, “the right of the people to keep and bear arms ‘is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress…”
Eugene Volokh points out in the above citation that 19th Century cases do not cover arguments relating to the Due Process Clause of the Fourteenth Amendment. Due Process arguments are precisely those arguments that were later used to incorporate other amendments against the states, in many cases involving civil rights for Blacks. Cruikshank also states that the right to keep and bear arms is independent of the Bill of Rights. As such, in my opinion, it must be counted among the natural rights of free individuals. The Seventh Circuit, in a truly amazing and terrifying hypothetical, postulates that even the right to self-defense could be “legally” criminalized. See David Codrea’s post here.
Presser goes on to say: “It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.”
It would appear from this long statement that the Supreme Court in Presser made the critical distinction between the right of the people to keep and bear arms and the power of the states to raise and regulate militias. The much more recent Heller Decision should have driven a final stake through the heart of the “Collectivist Right” argument.
Since the “Commerce Clause” has been used by the Federal Government to impose so many restrictions on state sovereignty, it would be interesting to see if this so-called “Elastic Clause” could be used to impose Second Amendment guarantees of freedom upon recalcitrant state governments. (Just a thought.)
We can expect opponents of the individual right to armed self-defense from crime, tyranny, and genocide to grasp at every legal straw in their efforts to disarm the American People. The Collectivist Argument is hopefully dead forever. Now we will continue to fight the battle for freedom at both the state and federal levels.
Colorado and a number of other states have in their own constitutions an articulation of the right of the people to keep and bear arms. This will help. However, as I have said before, we can not rely upon the provisions of the law alone. (See my Post, “S. 843-Gun registration bill threatens your rights,” April 27th, 2009, Category: “Registration.”)
We must make the political price of infringement of the Second Amendment so prohibitively high that, to paraphrase Patrick Henry, no one will dare approach the “jewel” of the public liberty with anything but reverence. Eternal vigilance!
Def Mech
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1 Comment so far
This is a great artical, thanks for sharing. I feel like I have been educated today.