I strongly disagree with a recent Massachusetts Supreme Judicial Court’s decision where the Court stated the Second Amendment to the Constitution does not apply to Massachusetts. This is a dangerous decision not only for gun owners and sportsmen, but also for all citizens who believe that states are subject to all the Amendments of the Constitution.
He’s talking about this decision, in which the SJC held — in accordance with a 135-year-old U.S. Supreme Court case — that the 2nd Amendment is not “incorporated” against the states, and therefore does not apply to state firearms regulations. Now, whether or not the 2nd Amendment applies against the states is an interesting legal question that is presently under consideration at the U.S. Supreme Court; a decision is expected by the end of June. Why the SJC chose to release this decision when it did, instead of waiting for the Supreme Court to act, is unclear to me, since if the Supreme Court holds that the 2nd Amendment does apply to the states, the SJC’s action will be nullified.
So far, Rep. Perry is on solid ground declaring that he thinks the 2nd Amendment should apply to the states — after all, the legal question is not settled, and reasonable people can (and do) disagree on how it should be answered.
But here’s where he goes off the rails:
This is a dangerous decision … for all citizens who believe that states are subject to all the Amendments of the Constitution.
“All the Amendments of the Constitution”? Come now, Rep. Perry. There are 27 Amendments. Several of them clearly have no application to the states (e.g., the one dealing with presidential succession).
Perhaps you meant that you think all the provisions of the Bill of Rights — the first ten amendments — should apply against the states. That’s a plausible position — but it is one that has never been adopted by the Supreme Court, and it’s one that goes a good deal further than I suspect Perry realizes.
The 7th Amendment, for instance, guarantees a jury trial for all civil suits worth more than $20. That provision has never been incorporated against the states; if it did, it would create a substantial burden on states’ already over-burdened jury systems, which can barely keep up with the demands they face now. Does Rep. Perry support the imposition of what would be, in effect, a huge unfunded mandate against state court systems?
Also, I am interested to learn of Rep. Perry’s enthusiasm for applying to the states the extensive protections for criminal defendants set forth in the 4th, 5th, 6th, and 8th Amendments. Back in the Warren Court era, these amendments were the vehicles for an enormous expansion of the rights states had to give criminal defendants, including Miranda warnings, free lawyers, and so on. I had no idea Rep. Perry was such a supporter of expanding the rights of accused criminals.
Moving on:
As the United States Supreme Court affirmed in the Heller case, the Second Amendment plainly guarantees Americans a personal and individual right to own a firearm. This part of the Bill of Rights is based on our Founders’ appreciation of the need for citizens of a democracy to protect them from tyranny.
I believe our Constitution must be strictly construed, and I think public confidence in our government is undermined whenever courts purport to change the Constitution’s meaning unilaterally.
Oops. “Strictly construed.” Let’s look carefully at the text of, say, the First Amendment.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
“Congress” shall make no law. I’d say that “strictly” construing that language pretty clearly means that it has no application to the states. So if you believe that the Constitution must be “strictly construed,” you must be looking elsewhere for applying the First Amendment to the states. (Unless you think it doesn’t apply.)
There are two possibilities. First, the 14th Amendment says the following:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States
Now there’s an interesting phrase. What are “the privileges and immunities” of U.S. citizens? One might well argue that all the provisions of the Bill of Rights are included in those “privileges and immunities” and therefore that this clause incorporates the entire Bill of Rights against the states.
Unfortunately, however, that argument was largely foreclosed by an ill-advised Supreme Court decision from 1873. Since then, incorporation against the states has proceeded via this clause:
nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Over the years, the Supreme Court has developed the somewhat oxymoronic concept of “substantive due process,” and has used it to incorporate some, but not all, of the Bill of Rights against the states. But “strict constructionists” don’t like substantive due process. So, Rep. Perry, do you think “substantive due process” exists, or not? If so, where do you find it in the Constitution? If not, how do you incorporate the 2nd Amendment, or any other provision of the Bill of Rights, against the states?
I find it especially offensive that the Massachusetts Supreme Judicial Court, the highest court of the state that was home to the battles of Lexington and Concord, would seek to avoid the individual liberties guaranteed by the Second Amendment mere weeks before Massachusetts residents celebrate Patriots’ Day.
Whatever. Moving on.
The Second Amendment is about a lot more than just guns,
It is? All it talks about is the right to bear arms. Sounds like guns to me. What else is it about? Perry doesn’t bother to tell us.
but for now let us be clear, our Founding Fathers did not trust government and thus they loaded up the Constitution and the Bill of Rights with numerous protections concerning individual rights and limits on government’s power. One cannot disregard the Second Amendment without putting our other Constitutional projections in jeopardy.
One non sequitur after another. Yes, the Bill of Rights contains various pro-liberty protections. But the question of whether the 2nd Amendment applies to the states simply has nothing to do with whether other parts of the Bill of Rights apply to the states. Many of them already do, and that is not going to change any time soon. So this nonsense about constitutional rights being “in jeopardy” is just that – nonsense.
While the Framers of our Constitution were indeed the elite citizens of their time, they were purposely driven to create a new and free nation: One not controlled by a gr
oup of elite nobility, but one of the common man.
BAAAHAHAHAHAHAHA!! Oh, that’s rich. The Framers of our Constitution, the great defenders of the “common man.” The ones who explicitly wrote African-Americans out of the Constitution’s protections. The ones who didn’t allow women to vote (well, maybe Perry’s reference to the common “man” takes that into account). The ones who devised the elections both of U.S. Senators and of the President to be far removed from a truly democratic process. The ones who, when some of them wrote a similar document in Massachusetts a few years earlier, restricted voting and holding public office to Christians and to property owners (at least they had the sense to abandon those rules when writing the national document). I could go on, but you get the idea. Let’s please not go overboard with Framer-worship. It gets embarrassing rather quickly.
Remember, this is exactly what they were revolting against. The Founding Fathers had risked their reputations, their fortunes and even their own lives to rid themselves of an overreaching monarchy.
OK, fair enough. Is there an overreaching monarchy now threatening us?
The Second Amendment is about a lot more than just guns. It stands along with all the other personal rights provided to us in the Bill of Rights. These rights were provided to protect us from an abusive government and not to grant additional power to the government.
Oh dear, oh dear. Again with the “more than guns.” What, exactly, is the 2nd Amendment about, if not guns? He still won’t tell us. And … has anyone ever argued that the Bill of Rights was supposed “to grant additional power to the government”? There’s a straw-man if I’ve ever seen one.
In fact, the Founders displayed how important this right was by placing it second among the rights and liberties included in the Bill of Rights.
Just a quick question, Jeff: is the rarely-invoked 3rd Amendment more important than, say, the 4th and 5th? Do you even know what the 3rd Amendment does? No peeking.
Our Founding Fathers did not trust government, whether it was the old one in England or the new government forming in the American colonies. They undoubtedly understood that if the ultimate power to alter an unresponsive government was to be retained by the people, that these very same people must possess the right to keep firearms to defend themselves against a tyrannical government that could possibly develop at some point in the future.
Here’s where Perry is bordering on the crazy. So let’s just get things out in the open, Rep. Perry: do you support the right of the people to take up arms against the government of the United States? Because it sure sounds like that’s what you’re saying. Oh yes, it has to be a “tyrannical” government. But who decides if the government has become “tyrannical”? If you ask Glenn Beck or your average tea-partier, most likely you’ll be told that we’ve crossed that line. So … where does that leave us? I’d really like to know the answer to that question.
As a former police officer, I agree and understand the need to have reasonable public safety laws; however, the Court’s decision today does much more than simply uphold gun safety laws, it sadly erodes an individual right.
Where do you draw the line between “gun safety laws” and “erod[ing] an individual right”? Pretty much any “gun safety law” is going to “erode” someone’s right to own or handle a gun in some way.
