I have contemplated this post for over a week now because I know some nut is going to try to use my comments to portray me as anti-2nd Amendment. So I ask that as we have a conversation about this sensitive issue that everyone have an open mind & remember that my only objective is the discovery of truth. Anyone who knows me knows that I am plenty pro-gun rights. But I reject the notion that being ‘pro-something’ means we cannot have adult discussions about whether or not that position is constitutional. My desire with The Arkansas Patriot, and now with Patriot Talk, is to have a conversation about the constitutionality of an array of issues & the intent of our founders. This article is simply an attempt to do just that.
Allow me to begin by saying: I love the 2nd amendment. I love the 10th amendment. I love liberty. I’m also a big believer in original intent–the idea that the founders who wrote the Constitution knew what they meant better than we do, and that their foresight is better than ours. So this last week when I ran across a headline about one of Arkansas’ U.S. Senators supporting a bill that has been bouncing around Congress for awhile, I felt like this was a good time to have a conversation regarding the federal Bill of Rights & how they apply to the states.
The bill before Congress would reportedly allow concealed carry permit holders to carry across all state lines, a decision that has always been made by the states themselves, not the federal government. Ironically, the bill is entitled the “Respecting States Rights and Concealed Carry Reciprocity Act.” But what about this bill respects states’ rights? And is this even constitutional?
(Of course, I am operating on the premise that some people in this country still value the idea of constitutionality.)
The idea of leaving decisions related to gun laws to the federal government is a debate I have had with many close political, gun-loving friends before. The general consensus among them has been, “It may not be within the originally intended powers of the federal government to act in this way, but as long as they’re being ‘pro-gun,’ I’m okay with it.” In other words, “As long as big government is acting the way I want it to, it’s fine.” Another argument that has been made is, “Well, the 2nd Amendment! What part of ‘shall not be infringed’ do you not understand??’ ” And lastly, I have been told that I may be right about the original intent of the 2nd Amendment, but “it doesn’t matter, because we passed the 14th Amendment, so the U.S. Constitution does now apply to the states.” Let’s take these points one at a time.
The idea that we can use big government for our purposes is wrongheaded and dangerous. It’s a similar reaction that many had in response to the PATRIOT Act. When Bush was in office & the act was originally passed, many conservatives were okay with the measures taken to keep Americans safe, even if it cost us a little liberty. We trusted Bush. But when Obama came into office and we begin to see how some provisions of the act could be abused, many changed their tunes. Likewise, many who may want to support these efforts to impose gun-friendly laws on states should be leery of what this could mean if Democrats were to once again gain control of both houses of Congress. Would folks in this camp support the federal government telling businesses that they must allow guns in their stores? Big, centralized government is still big, centralized government. I don’t like it ever, regardless of whether or not it appears to be doing something I like.
Then we have the argument that I have somehow missed the ‘shall not be infringed’ clause of the 2nd amendment. Trust me, I’ve read it, and I’ve studied it. The problem with this argument is that the 2nd Amendment is part of the U.S. Constitution, not the state constitutions. Until a series of Supreme Court rulings in the late 19th century (the Slaughter-House Cases) and the passage of the 14th Amendment/Incorporation Clause, the U.S. constitution didn’t trump the states. The 2nd Amendment restricted the federal government from infringing on gun rights, but it did not restrict the state governments. It is true that most states passed their own Bill of Rights & amendments similar to the federal version, but the U.S. Constitution was never designed to trump states’ laws. This was part of the founders design to keep the federal government restrained & states relatively sovereign, allowing for some variation in freedoms.
Look, if California wants to outlaw guns, that’s fine with me. I really could not care less. I am not going to live there, and they’re probably going to do it anyway, so be my guest. But if Arkansas tried to restrict gun rights in any way, I would be up in arms (see what I did there?). This is my state, where I live, and I like our freedom. We should have the right as a state to determine how we are going to handle gun issues.
This design is truly part of the beauty of the system that the founders designed: We are one nation, united under one federal government, but we still have local control over critical issues of freedom. If I don’t like the laws in Arkansas, I can move to Texas. But if the feds pass a stinker of a law, where am I to go? States were designed to be laboratories of democracy. Bills like the federal right to carry stomp on that design.
Now, as for the argument that ‘the 14th Amendment changed all that:’ Yes, the 14th Amendment did change some things, many of them positive, like standardizing citizenship & providing equal protection. But how silly is it to think that an amendment passed in 1868 could change the original intent of the founders nearly 100 years prior? I am a little rusty on my con-law, but I believe a look at the congressional record will show that many conservative congressmen at the time were very concerned that the 14th Amendment would be used in the exact way it has been, endlessly expanding the federal government’s power. Proponents of the amendment argued it would be not be used in that way. So you could say that even the original intent of the 14th Amendment isn’t being applied.
The bottom line is this: We either believe in original intent, or we believe in a ‘living document’ We are either against big government, or we are for big government. We are either against federal mandates or we are for federal mandates. We cannot have it both ways.
If we are for big government, we should 1. Stop calling ourselves conservatives & 2. Brace ourselves. Because you see, a government that is big & powerful enough, outside of its constitutional authority, to mandate that states accept gun-friendly laws is a government big enough to take guns away.
From my perspective, a national right to carry bill is dangerous and unconstitutional. Once we allow the federal government the right to force states to recognize concealed carry permits, we have officially opened the door to allowing the feds to take the permits away.
(Send hate mail to ArkansasPatriot(at)gmail.com or hate tweets @nhhorton/@ArkansasPatriot)