The Right of the States to Regulate Firearms

Posted on April 15, 2013. Filed under: Politics, United States Constitution | Tags: , , |

Cover of "The Second Amendment"

Cover of The Second Amendment

Whenever you do a lot of research and a lot of writing, every once in awhile, you run across information that completely contradicts your beliefs.

I believe that the Constitution applies only to the Federal government, and not to the states as the Supreme Court has held that it does for the past 100 or so years.

The Constitution specifically prohibits the states from performing certain actions, but says in the Tenth Amendment that anything not any power not given the Federal government, or prohibited to the states, is reserved to the states.

Thus, the First Amendment, expressly stating that Congress shall make no law, is not applicable to the states. The implied notion is that the States could create a state religion if they so chose to.

As I’ve been researching the Second Amendment, I’ve learned that it was not written as a compromise with the south to ensure that they would ratify the Constitution (it was already ratified). New York and New Hampshire (along with Virginia) requested the amendment.

I’ve learned that it was not meant to cover just muskets, or weapons that they were familiar with. Breech loaders had been introduced at the time and were starting to change warfare. Also, Article I, section 8 implies that warships may be owned. And for you out there making the airplane argument, that’s just silly. The average person doesn’t have the resources to maintain an airplane.

I’ve also learned it does not apply simply to the militias. The militias were a concern at the time, because they were the primary defense of the state. State legislatures were concerned that Article I, section 8 would allow the Federal government to disarm the states by neglecting to arm the militias. In order to allay that concern, the Founders wrote what essentially said, “okay, since you are so concerned with us not funding or arming you militias, we will let you keep and bear your arms for training and defense”.

People were allowed by the Federal government to keep their arms for defense and for training purposes. I have found no evidence that they were meant for overthrowing the government. There are hints and suggestions, but no one came out directly and said it. That does not mean that it isn’t there, but I have yet to find one single debate from one of the Founders or Congress that debated this that mentions overthrowing the government.

Where does this clash with my beliefs?

It clashes because we complain that Connecticut, New York, California and Oregon are trying to pass laws restricting gun rights.

It clashes, because the Second Amendment is a prohibition on the Federal government, not the states.

Even though the Supreme Court has held for the past 100 or so years that the Constitution applies to the states, I believe that this is incorrect, and a usurpation of states’ rights by the Supreme Court.

The Constitution enumerates a list of powers prohibited to the states, but the Tenth Amendment states that any power not delegated to the Federal government, nor prohibited is reserved to the states (or the people).

Gun rights advocates cannot have it both ways. Either the Second Amendment does not apply to the states, or the states have no power.

I lean to the former. The Federal government cannot prohibit arms, but the states can, if they so choose. Then it would be an issue for the state supreme courts, not the Federal courts.

The Oregon Constitution states that the people have the right to bear arms for their defense and the defense of the state, but that the state militia is subordinate to the state. It is important to note that the state Constitution does not guarantee the right to keep arms.

The Connecticut constitution also guarantees the right to bear arms, but not the right to keep them:

Every citizen has a right to bear arms in defense of himself and the state

In California, there is a petition going around that people are signing calling for the banning and confiscation of firearms.

California would be well within its legal rights to ban and confiscate any weapon. The California constitution holds no provision for guaranteeing the right to arms, at all.

The closest it comes is saying that individuals have the right to defend their property, and that the US Constitution is the Supreme Law of the land.

As much as we complain about the individual states, I believe that they do have the right to ban arms if they so choose.

That does not mean that I think it is a good idea, or that people should not fight to protect their rights. The Bill of Rights must be applied evenly and consistently. If it applies to the states, then the states’ constitutions are null and void.

We need to reverse that nationalistic tendency that we’ve fallen into the last hundred or so years. Let the states decide what’s best for them, not the Federal government. Let things be handled on the state level and make the Federal government do what it was originally intended. Let them deal with North Korea and China, while we worry about our schools and our rights.

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