The question a reader asked is: Are states bound by the US Constitution when it comes to gun rights?
(This one is long and I tried to make it simple, but I probably failed. It should make a fun read, however)
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
The 2nd reads: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The two phrases are Right of the People, and Infringed.
Infringed is a copyright term, or copy right. The Right of Copy. When you have the Right of Copy, no one else has it. If anyone copies your work, they have violated your Copyright. As soon as they use the product made, or sell it, or even brand or define it, they have infringed on your right to be the only one to copy that creation. It is almost absolute. The copyright can expire, it can be sold, and others may make something based on your copyright with your permission. The right is yours. The same with the right to bear arms. It’s an individual right. It’s copyrighted to you on your birth within the borders of the USA (with a few exceptions) and is considered a Birthright. Only you can define it, use it, or enjoy it. It belongs to you and you alone unless you willingly give it up.
THE RIGHT OF THE PEOPLE:
The right of the people is a very specific term in law. You’ll find it in, “We, the people,” and other places… but the Bill of Rights was collected from various states and assembled into a group of ten amendments to add an additional layer of protection against government over-reach. You’ll see the phrase, “The People,” throughout the amendments. In the 1st, “The right of the people to assemble,” came about because the British forbade certain groups from meeting and people had to meet in private and in great secrecy. They felt that the ability to meet was a Right, and that it belonged to the people, not the government.
They also saw a right as a tangible thing. It’s property, a possession, an item. As much as a wallet, or purse, or clothing – but an item, like in copyright law, that is incorporated into you and cannot be separated except by free will. Some rights were granted to the government such as the ability to make your own money or barter exchange currency, or, establishing your own personal roadway systems, or granting citizenship to someone you like and want to move into the USA with you.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Enumeration means Section 8 of the US Constitution. These are the powers granted by the people, to Congress. I’ll not list them here, but one of the powers is the Necessary and Proper Clause.
It reads: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
This means that it would be really easy to read a power into the text of the Constitution, a power that does not exist. This is called, “Misconstruction.” It’s defined as, “[T]he action of misconstruing words or actions; misinterpretation.” Say, you want to ban baseball games. So you write a law saying “No Baseball, EVER!” Under many nations’ laws, that would be perfectly okay, but in our nation, powers are granted by the people and if no power is granted, no law can exist on that power. This is called Unconstitutional, or Extra-Constitutional. So you write a law and you have to have a basis in an accepted power, so you use….. Interstate Commerce Clause. “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”
How do you justify it using that? Easy. People come to ball games, and they buy popcorn. The popcorn MIGHT come from a different state, or it MIGHT cause some popcorn from a different state to not be bought, therefore it allows the government to ban baseball because eating popcorn at the games falls under the Interstate Commerce Clause allowing government regulation. You could say the same with the baseball itself, or the bat, or the uniform. In fact, eating anything would place you under the ICC and allow the government to regulate every aspect of your life. This is not what the framers intended nor what we want as a nation. So the people who framed the nation wanted to protect us from this kind of over-reach and abuse of power.
So let’s put it all together.
PREAMBLE TO THE BILL OF RIGHTS:
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
Now, I’ve pointed out, “The right of the people.” Let’s look at how it’s used.
“the right of the people peaceably to assemble”
“the right of the people to keep and bear Arms”
“right of the people to be secure in their persons”
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.“
Now, we get to the meat of the matter.
The Bill of Rights (It’s a popular name, but not the name of the amendments) starts with a reason for them being placed in the Constitution. In that, the people of the several states, through their assemblies, wanted to declare that some thing were NOT the right of the government and could not be taken by the government.
Enumeration means the rights granted to the Constitution in Section 8. These are the powers that we granted to the Constitution, in addition to the power over the offices established such as President, Congress, judiciary.
Then, the 9th uses an interesting term, “Rights retained by the people.” Where were rights retained? Within the bill of rights. These were considered to be absolute rights, rights that the people did not give up, and rights that the government was to leave alone. These are declared as, “Rights of the people,” as opposed to the rights of the state, rights of the county, rights of the federal government. When you see the Supreme Court declare a right unconstitutional, it’s because it violated one of these limitations, or it is not based on an existing federal power or it’s a state law that conflicts with one of these limitations or a federal, granted, power.
So let’s look at the 2nd again. And this time, REALLY look at it. Let’s break it down.
It’s a restrictive and declarative clause as per the preamble. It’s declarative because ti declares clearly that the right to bear arms belongs to the people. Now, this type of right is a Birthright and belongs to each individual, so only an individual can give the right up. No one can take it by force. It’s also inseparable in that the right covers arms, not just guns. It covers bows, knives, guns, cannon, ships, planes, and anything else that a person may own that could be used as a weapon – especially those items that could easily be weaponized. So to deny someone the right to bear arms, would remove a huge portion of the rights that a person enjoys. Some want to claim it only means guns, but if a persons right to bear arms is suspended, then ALL arms are forbidden that person, not just guns. It’s inseparable because to ban one means to also ban all. The Supreme Court had difficulty with this once when they looked at a ban on certain types of weapons and concluded that the items that could not be banned were items in common use – which is itself a violation of the limitation on the courts. Here’s why.
THE RIGHT OF THE PEOPLE SHALL NOT BE INFRINGED:
The right belongs to the people, or it doesn’t. If it belongs to the people they define it. If it belongs to the government, they define it. The people cannot own it and the government define it, nor can the government own it and the people define it. It’s black and white, one or the other. There is no joint ownership. So who owns it? The 2nd makes that perfectly clear and the 9th confirms it. The 2nd says it is a Right of the People. They own it. YOU own it. They do not. They USE the right occasionally with the consent of the Congress and through our reps. Without that approval, they cannot use the right. The 9th says, “…shall not be construed to deny or disparage others retained by the people.”
There’s that word again. Misconstruction. Construed. Misconstrued. Purposely misinterpret words.
So we own it and the government doesn’t. They are forbidden from misconstruing, or misinterpreting something else to grant them power over the right. They are not only not allowed to gain that power over it, use other clauses to side step their limitations, but also disparage the right they cannot touch.
DENY OR DISPARAGE:
Deny: “refuse to give or grant (something requested or desired) to (someone).”
Disparage: “regard or represent as being of little worth.”
So, they cannot deny the right to someone, they do not have the power.
They cannot talk the right down, badmouth it, or say, “No one needs an AR15,” legally.
They cannot take the right away at all in any way, or it would infringe on their right.
States cannot do any of these things because the limitation is a federal limitation on a right retained by the people. So here’s where the 10th amendment comes in.
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
So, let’s apply it. The “Right to Bear Arms.”
Was it delegated to the United States by the Constitution? Nope.
Was it prohibited by the Constitution to the states? Yes, under the 2nd.
Was it reserved to the states to regulate? Nope, under the 9th and 2nd’s reference that the right belongs to the people.
Lastly, “or to the people.” Yeppers, that’s the one right there. It belongs to the people.
So can a state regulate the right to bear arms? YES THEY CAN. Under a different clause, a carve-out so to speak. “To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States…”
This allows the states to discipline the MEN of the MILITIA while they are employed by the United States Government, federal or state. It also would allow the government to distribute weapons and arms to individual between the ages of 17 and 45, at any time. It does NOT grant power to regulate the arms themselves, or the men who serve except while they are being paid and enlisted into the Militia.
So there you have it. Open to rebuttal or discussion.