Thursday , March 06, 2014 - 9:59 AM
The Second Amendment has a history that is quite different than is often understood or portrayed. To view the Second Amendment’s historical context, one must understand the history of the Bill of Rights (henceforth BR).
At the Constitutional Convention, a motion to appoint a committee to draft a BR was voted down 10-0. The BR was created when the states and localities had enormous power; states were very fearful that the new national government would abolish their state militias and then use a standing army to take away their rights and obliterate them into one consolidated government.
In 1781, the Father of the Constitution, James Madison, had wanted the national government to use military force to compel states to fulfill their war obligations. To secure ratification for the new Constitution, the states were promised that a Bill of Rights would be adopted later that would clip the wings of the national government. The fact is, the Bill of Rights was not designed to protect liberty from state power and so it failed abysmally to do so. States were free to infringe on all the liberties enumerated in the first eight amendments of the Bill of Rights. The founding fathers approved of the Bill of Rights belatedly and begrudgingly so that the new constitution would be adopted.
Numerous examples can be found where states disregarded property rights, denied religious freedom, abridged freedom of speech, etc. In sum, an individual had only the rights that his state government granted to him.
As long as local authorities had inordinate power, private liberty was easily curtailed. For example, in 1897, the Supreme Court unanimously upheld the conviction of a preacher for distributing Bible tracts on the Boston Common, holding that City officials could “absolutely or conditionally forbid public speaking in a highway or public park” because such action is “no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house.”
Similarly, at the inception of the BR it was understood and accepted that state and local politicians could regulate gun use, transport, and ammunition storage etc. without infringing on the Second Amendment. Thus, there was little surprise when in 1876 a unanimous Supreme Court ruled: “The second amendment declares that it shall not be infringed; but this, as we have seen, means no more than it that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government.” (see the United States versus Cruikshank) Thus, if a state had chosen to confiscate all guns, it would not have violated the Second Amendment.
The limited scope and applicability of the BR caused the eminent legal scholar Sir Henry Maine to say it was “a certain number of amendments on comparatively unimportant points.” As long as an individual’s rights were granted at the pleasure of the state, it’s misleading to think the individual had inviolable rights.
In the aftermath of the Civil War, the Fourteenth Amendment was ratified (1868) to give liberties to freed slaves. Decades after its ratification, this most significant amendment was used by progressives and other civil libertarians to expand individual liberties at the expense of states rights.
For millions of Americans in heavily urban states, the right to own guns came in 2010 from an activist Supreme Court using the Fourteenth Amendment. Otis McDonald had been unable to own a handgun because of a city-wide handgun ban. McDonald sued (MacDonald versus Chicago) and won a new Fourteenth Amendment right. Justice Samuel Alito, speaking for a 5-4 majority declared: “The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the states.”
This decision had all the hallmarks of judicial activism:
• It was a landmark decision which was totally contrary to earlier precedents.
• The Court discovered brand new rights that it had never discovered in the 18th, 19th, or 20th centuries.
• The newly discovered rights went to an individuals.
• The new individual rights diminished state power.
• The power of elected branches of government in cities and states to legislate was diminished.
• The Court imposed a “one-size-fits-all” policy on the nation which ignores regional differences between rural and urban areas.
The new Fourteenth Amendment rights came in a much more urban society, composed of entirely different conditions than existed at the time of the adoption of the BR. Often, the impression is left that we are always losing more rights, but with the Supreme Court making new Fourteenth Amendment rights, that is not the case. If creating another Fourteenth Amendment right is not judicial activism, then what is?
Jones lives in West Haven.
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