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Should Owning a Gun be a 10th Amendment Issue

By Matt Holdridge

Recently the Miami Herald declared, “Monday was a very good day for the National Rifle Association and a very bad day for the sensible state and local officials in this country who want to curb the level of gun violence in their communities.”

There statement was in regard to the recent 5-4 Supreme Court decision ruling that a person’s right to bear arms under the Second Amendment’s applies to state and local gun-control laws.

It has also prompted the New York Times to predict, “…the results will be all too real and bloody.”

They went on to lament:

Once again, the court’s conservative majority imposed its selective reading of American history, citing the country’s violent separation from Britain and the battles over slavery as proof that the authors of the Constitution and its later amendments considered gun ownership a fundamental right. The court’s members ignored the present-day reality of Chicago, where 258 public school students were shot last school year — 32 fatally.

Rather than acknowledging Chicago’s — and the nation’s — need to end an epidemic of gun violence, the justices spent scores of pages in the decision analyzing which legal theory should bind the Second Amendment to the states. Should it be the due process clause of the 14th Amendment, or the amendment’s immunities clause? 

“Conservative” outlets such as National Review Online declared with more than a hint of enthusiasm that:

The Supreme Court’s rejection of Chicago’s handgun ban in McDonald v. City of Chicago is more than a recognition that the Second Amendment applies to the states as well as the federal government. The McDonald decision is a harbinger for the end of gun prohibition as an idea. The simple, undeniable truth is that gun control does not work.

While acknowledging the evidence that gun bans (and prohibition in general) don’t do much of anything to curb the crime they’re supposed to prevent, should “conservatives” and more importantly, lovers of liberty (as expressed by Campaign for Liberty), be excited about this Supreme Court decision? 

Jack Hunter and Kevin Gutzman don’t think so. 

In a March 10, 2010 article, Jack Hunter writes: 

When the City of Chicago banned all handguns recently, countless Americans rightly cried foul. When it looked like the Supreme Court might overturn the ban, gun-rights advocates cheered the decision. But while their heart is in the right place, their enthusiasm is not, as what gun-rights advocates are really cheering is the federal government assuming even more power.

Why you may ask? Jack goes on:

The Bill of Rights was never intended to be a list of individual rights, but a list of things the federal government could not do to the states. Patrick Henry and his anti-federalist friends did not want an all-powerful “national” government and insisted the Bill of Rights be added to the Constitution in order to make crystal clear that the federal government’s powers were few, limited, and only those delegated to it by the states. The rights to free speech, freedom of religion, and to keep and bear arms were rights the federal government could never take away from the states, allowing states to regulate speech, religion — and yes, firearms — as each saw fit. Today, the Founders would declare federal gun legislation like the Brady Bill to be unconstitutional, pointing to the 2nd, 9th, and 10th amendments. The Founders also would have declared Chicago’s gun ban constitutional (albeit stupid), also pointing to the 9th and 10th amendments. The 2nd amendment does not apply to the Chicago gun ban because the federal government is not involved — nor should it be.

Constitutional historian Kevin Gutzman put it another way during an interview with radio host Mike Church earlier this year:

when we have a Second Amendment, essentially what that means is that the federal government is to have nothing to do with your ownership and use of weapons. But that doesn’t mean that nobody is able to regulate your ownership and use of weapons. If neither the federal government nor the states can regulate ownership of weapons, are we saying that retarded people and insane people and felons and children can all own weapons? Clearly some level of government has to be able to regulate the use and possession of firearms.

So what are liberty-minded people supposed to do? On one hand, we cheer gun ownership and its place in a free society, but does that mean we should rejoice the defeat of local people to decide how they prefer to live (especially if we don’t agree with it); isn’t this a 10th Amendment issue just as much as health care is?

Bernie Quigley at The Hill thinks so:

If Chicago doesn’t like the ruling and if Mike Bloomberg in New York doesn’t like it, they should not try to skirt it with secondary trick legislation. They should move to have the Second Amendment stricken from the Constitution as Tea Party favorites Tim Bridgewater and Mike Lee in Utah have been calling for the repeal of the 17th Amendment.

Then gun ownership would become a 10th Amendment issue. With no specific constitutional directive to oppose or allow gun ownership, it would be up to the states.

Mr. Quigley is not alone. He has an ally, which may seem unlikely but not upon further thought, in economist Thomas Sowell:

…while the Supreme Court must make the Second Amendment the basis of its rulings on gun control laws, there is no reason why the Second Amendment should be the last word for the voting public.

If the end of gun control leads to a bloodbath of runaway shootings, then the Second Amendment can be repealed, just as other Constitutional Amendments have been repealed. Laws exist for people, not people for laws. There is no point arguing, as many people do, that it is difficult to amend the Constitution. The fact that it doesn’t happen very often doesn’t mean that it is difficult. The people may not want it to happen, even if the intelligentsia are itching to change it.

What are your thoughts?

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