Thread: "The 2nd Amendment: How the left screwed themselves through judicial activism."
It's a bit ironic.
Lets start from the beginning: The Constitution.
As everyone should know, the Constitution delegated enumerated powers to the Fed Govt, thereby limiting what it could do.
Per Article VI, the supreme "Law of the Land" consists of the Constitution, the laws passed "in pursuance thereof," and treaties.
Notice it does not say SCOTUS opinions? Also note, it says laws "in pursuance thereof." Meaning, the law is unconstitutional if the power was not enumerated. We have lots of those!
A reminder: powers not delegated to the Fed Govt remain with the States.
Sorry for the little history lesson, but many seem to forget these pesky details.
Lets talk about the Bill of Rights.
At first, Hamilton didn't want to include them. You might ask, "Why? It's crazy not to have a Bill of Rights!"
Hamilton (arguing against BoR): "They [BoR] would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?"
To put Hamilton's point more succinctly: A Bill of Rights would give the govt excuses to do things it wasn't delegated to do.
Well, we can see the "old white guy" was pretty good at foretelling the future of govt. It certainly has come up with some very "colorable" pretexts to violate many of our rights.
Take away the BoR, and you are still left with a govt not given the enumerated powers to limit Rights.
Take away the 1st, the rights still exist.
Take away the 2nd, the right still exist.
Only passing an amend. taking away a right would work. There is no question about this.
Lets talk about the 2A. "Collective" rights activists, such as Stevens in DC vs Heller, believe the 2nd is a collective right. More about maintaining the militia than an individual right.
Never mind all the other rights listed are individual (Except perhaps the 10th which explicitly says the States reserve all powers not delegated but also mentions People).
How did this come about? The SCOTUS opinion in United States v. Miller. Which, was based off the National Firearms Act of 1934. In other words, a SCOTUS opinion (not law) based on a gun control act (not made in pursuance thereof) violating the Constitution.
Though, this "collective right" argument continues today supported by: 1) The word militia in the 2A, 2) Various framer's quotes about "bearing arms" and the Militia, 3) Existing State gun control laws at the time, and 4) Stevens in DC vs Heller.
No. 1: We all know attorneys and judges squeeze out whatever they can from the words used in laws to attain the desired outcome. But lets look at the 2A from a grammatical point of view.
Seems clear. People, including attorneys and judges, have been misreading the 2A for quite some time.
Critic: "That's not what the founders meant. It meant only bearing arms for the militia and there were State gun control laws even recently after the Constitution was passed!"
No. 2: Fact Check - true. There are many quotes from the founders regarding bearing arms and the militia. If you haven't read them, they are easy to find.
However, don't forget to also read quotes about the "original right to self-defense." I listed a couple.
Example:
"The Constitution shall never be construed...to prevent the people of the United States who are peaceable citizens from keeping their own arms." - Samuel Adams
Example:
"Arms in the hands of individual citizens may be used at individual discretion in private self-defense." - John Adams
No 3: There were also State laws. You can easily find them. But guess what? That's because the 2A was applied to the Fed Govt and not the States. In fact, SCOTUS ruled that way for many years early on. It was a power reserved to the States, as per the Constitution.
No 4: No need to cover since Stevens bases his dissent on all the above. None of which are valid.
Frankly, the collective argument is weak no matter how you look at it.
At this point, it can be said: The founders determined the Fed Govt should not pass any gun laws that infringe on the Right. None, zip, nada.
Said laws should be left to the States. As evidenced by some State and county gun laws during the time the founders were still alive.
Something that is often overlooked regarding gun control in States: Article I, §8, clause 16
If a State law possibly compromises this Article, Congress' ability to call forth the Militia, the law is unconstitutional.
Just a passing thought.
Now, the irony of judicial activism: The 14th Amendment.
Remember "separation of church and state?"
Remember prayer in schools, State religious displays?
Or the big one: abortion?
All the above are distortions of the 14th Amend. Judges twisting the original intent of the words to fit their desired outcomes. Welcome to the "Incorporation Doctrine."
"The incorporation doctrine is a constitutional doctrine through which the first ten amendments of the United States Constitution (known as the Bill of Rights) are made applicable to the states through the Due Process clause of the Fourteenth Amendment."
law.cornell.edu/wex/incorporation_doctrine
Oops! That means the 2A now applies to State laws as well.
Instead of sticking with originalism, where States could have passed some gun laws, progressives decided to support bogus SCOTUS opinions that led directly to what they hate the most.
Of course, anyone with intelligence knew the opinions by SCOTUS distorting the 14th were a power grab. Now, they can accept cases they never had the Constitutional authority to hear. Including 2A. Hello, DC vs Heller.
Most of the issues we face can be traced back to the Fed Govt overstepping the enumerated powers in the Constitution. The current situations with abortions, guns, commerce, schools, and healthcare in particular. Like most things, you reap what you sow. Reap it, progressives
Robert
@tally_dad
My faith in people has dropped significantly. I'm an independent (ex-Rep since Bush II), who follows the Constitution, not the politician.
