Wednesday, January 12, 2005

Gun Control is States' Right

The second amendment prevents the federal government from infringing on the right to bear arms, but has no impact on state regulation. The Founding Father's neven intended to prevent state regulation of arms within the borders of a state. Strict constructionists should recognize that if you want to rely on what the founder's intended, individual states can disarm their populations. Since the Supreme Court has not incorporated the 2nd amendment to apply to the states as it has with some other rights in the bill of rights, the second amendment is not a barrier to regulation at the state level.

Even the First amendment was not applied to the states until 1925 in Gitlow. Prior to that, states had all kinds of laws that prevented speech, particularly laws that made it illegal to criticize leaders and judges.Incorporation is the term that the SCOTUS uses when it applies the bill of rights to state action. What it means is that the due process clause of the 14th amendment applies some of the bill of rights (such as speech and trial by jury for serious crimes) to state action. It is the selective incorporation doctrine because not all of the bill of rights is applied. The second amendment is one of them. Prior to the 14th amendment, the bill of rights was never applied to the states. It took activist judges to decide that the 14th amendment means more than was plain on its face (ie, determine that due process means bill of rights-one argument at the time was that it meant state action could not be capricious or arbitrary, but not specifically required to follow the bill of rights), and it took 100 years for the doctrine to evolve to the point that most americans assume that the entire bill of rights are applied to state action.

The Supreme Court uses the "selective incorporation doctrine" of the 14th amendment in expanding the bill of rights to include state action, and has not applied this doctrine to the 2d amendment.
Similarly, other rights in the bill of rights have not been incorporated:
1st Amendment: Fully incorporated.
2nd Amendment: No Supreme Court decision on incorporation since 1876 (when it was rejected).
3rd Amendment: No Supreme Court decision; 2nd Circuit found to be incorporated.
4th Amendment: Fully incorporated.
5th Amendment: Incorporated except for clause guaranteeing criminal prosecution only on a grand jury indictment.
6th Amendment: Fully incorporated.
7th Amendment: Not incorporated.
8th Amendment: Fully incorporated.

1925: In Gitlow v. New York, the U.S. Supreme Court upholds under the New York criminal anarchy statute Gitlow's conviction for writing and distributing "The Left Wing Manifesto." The Court concludes, however, that the free-speech clause of the First Amendment applies to the states through the due-process clause of the Fourteenth Amendment.

1931: In Near v. Minnesota, the U.S. Supreme Court invalidates a permanent injunction against the publisher of The Saturday Press. The Court rules that the Minnesota statute granting state judges the power to enjoin as a nuisance any "malicious, scandalous and defamatory newspaper, magazine or other periodical" is "the essence of censorship." The Court concluded that the primary aim of the First Amendment was to prevent prior restraints of the press. http://www.firstamendmentcenter.org/about.aspx?item=First_Amendment_timeline

I also think that the fact that States were passing or modifying their own Constitutions at the time and included the right to bear arms (and speech, etc) would indicate that at the framing, the states did not believe that the bill of rights applied to state action.

The proper place for the assault weapons ban and other gun control is at the state house. Though many states have state constitutions that protect gun ownership as well, those constitutions can be changed much more readily than the federal one. Those who want gun bans should concentrate their efforts where it will matter and can occur, not at the federal level where it is impractical and should require a constitutional amendment.

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