Thanks to our “living Constitution,” since the 1800s, periodically, the federal judiciary creates new rights and liberties for the American people.
This Sunday, June 28, marks one decade since individual gun rights were found to trump states’ rights.
None of the first eight amendments were written with the intention of creating individual rights; if the framers intended to guarantee individual rights, their language would have expressly targeted and constrained states by declaring “No state shall...” (see Article 1 Section 9 of the Constitution)
The Constitutional Convention of 1787 lasted 116 days. Five days before it ended (Sept. 12), Elbridge Gerry and Col. George Mason sought to add a Bill of Rights (BR). Their proposal was voted down unanimously. Yet their proposal would not have created individual rights because they believed in the primacy of states’ rights. And when individuals have rights, it limits the prerogatives of the states. Consider how states are limited in curtailing the rights of suspects, gays or voters, etc.
Since the time our Bill of Rights was created, belatedly and begrudgingly, to secure ratification of the Constitution, there has been a common misperception that the BR created individual rights. The matter was clarified in Barron v. Baltimore (1833), the last decision in which Chief Justice John Marshall participated. Barron contended that states could not take property without compensation because of the Fifth Amendment. The court made clear none of the BR limited the states. To this day, that important decision has never been overruled.
So, when rights were created, the Court relied on the 14th Amendment because that does clearly state, “No state shall...” For example, when Jehovah’s Witnesses Jesse Cantwell and his two sons prodded the Court to create religious liberty in 1940, it declared Connecticut’s law “deprives them of their liberty ... in contravention of the Fourteenth Amendment. ... The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws.” Previously, states could restrict religious liberty.
A half a century earlier, the Supreme Court upheld an Idaho law which forbid Mormons from voting or holding elective office. (See Davis v. Beason 1890) Of course, the First Amendment only barred Congress, not the states, from denying religious liberty. Until well into the 1800s, states forbid Jews, Catholics and atheists from holding office. Through the 1800s, when there was much more local control and before power was centralized in Washington, states were the archenemy of American liberty.
Individual gun rights followed a trajectory similar to religious liberty. In 1876, a unanimous Supreme Court declared the Second Amendment “means no more than 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.” Regarding gun rights, the national government “can neither grant nor secure to its citizens any right or privilege not expressly or by implication placed under its jurisdiction.” Thus, the national government had zero responsibility to protect gun ownership. In fact, until well after 1900, people of color were often barred from owning guns or Bowie knives. In 1983, the Court let stand an appeals ruling that upheld the authority of Morton Grove, Illinois, to ban the sales or possession of handguns by village residents.
Then, in 2010, five men, with the stroke of a pen, used the 14th Amendment to create gun rights. (Chicago v. McDonald) The Second Amendment by itself could no more have created gun rights than a buck, without a doe, could create a fawn.
There is a widespread ignorance, even among candidates for elective office, of the critical role the 14th Amendment played in creating most of our rights and liberties. Many describe themselves as pro-Second Amendment, implying that 100% of the conservative courts of the 1700s, 1800s and 1900s were anti-Second Amendment. The fact is the NRA and Donald Trump and many other self-described conservatives have promoted an utterly false historical narrative. As the late Republican-appointed Supreme Court Chief Justice Warren Burger stated, “The Second Amendment has been that subject of one of the greatest pieces of fraud, I repeat the word fraud, on the American people by special interest groups that I have ever seen in my lifetime.”