It comes as no surprise to those who know me that I do not believe in an individual right to bear arms, and that I think the recent Supreme Court decision to the contrary is plain wrong. One thing that is clear to me and still unclear from the Court is whether the 2nd Amendment applies to the states and localities that impose gun control. This concept, known as incorporation, is that the 14th Amendment guarantees of due process and equal protection incorporate provisions of the Bill of Rights and apply them to the states.
In the middle of the 20th century, there was a major debate on whether the 14th Amendment incorporated all of the Bill of Rights, some of the Bill of Rights or none. This has largely been settled, and it is now generally acknowledged that the 14th Amendment applies most but not all of the Bill of Rights to the states. The basic standard that the Supreme Court has applied is to consider whether a Right is "fundamental to the concept of ordered liberty" as Justice Cardozo put it in 1937. Among the rights not incorporated are the right to a jury in civil trials (7th Amendment) and the right to be indicted by a grand jury (5thAmendment). These rights, while of debatable worth do seem to at least speak to values of due process that this country holds dear. The right to hold a weapon, on the other hand, does not seem to be fundamental in any way, despite the protestations to the contrary by the NRA.
It would seem that the Second Amendment is also a right of the states against the Federal Government, in that it is about guaranteeing a right to a state militia (essentially the equivalent of today's National Guard). So even if the Court is uncomfortable with state gun regulation (though I am not sure why anyone is against gun control), how do they read in a limitation on state gun regulation into an amendment? The states have the right to a well regulated militia, so even if a personal right exists to guns, it is not applicable when a state chooses to limit the right. This seems to be very obvious, so I would appreciate comments that explain why I am wrong.
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I assume that you do support the right to an abortion which is clearly not in the consitution but a 'panumbra and emination'[sic]. You do not have to believe that the right to bear arms is a right - b/c most of the country does and it is probably closer to being in the Bill of Rights then abortion
ReplyDeleteOf course I support the right for a woman to choose, which is not based on penumbras or emanations, you are thinking of Griswold v. Connecticut. Technically the basis of the right to choose an abortion is from the 14th Amendment, clearly not part of the Bill of Rights (except for reverse incorporation against the Federal Government into the 5th Amendment). I doubt most of the country has thought about this issue and therefore they have no opinion on it whatsoever, owning a gun is not a statement on a constitutional right to own a gun. Clearly, it is legal in many places and many hold guns illegally, as well. I am not discussing orginalist views of the Constitution since I don't agree with that approach. It has to do with whether this is a right that needs to exist within the structure of the Constitution and it clearly doesn't. In addition, this is my blog, who says that I have to agree with what most of the country thinks.
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