9 thoughts on “The Second Amendment: Montana Gun Law Sparks First Shot Against Feds”

  1. keokuk,

    As I previously stated, the Bill of Rights was merely a list of rights already held by individuals and rights that were protected by the government, not granted by it. It does not matter how long the incorporation argument has existed – it is inherently flawed.

    Our natural rights cannot be infringed upon by any government. And it is explicitly declared in our Constitution that the document is the “supreme law of the land,” as well as any laws made in pursuance thereof. None of its clauses need to be “incorporated” against the states for them to be applicable, including – and especially – the Bill of Rights. They are already the “supreme law of the land” by virtue of their very existence in the Constitution.

    To claim that these amendments need to be “incorporated” in order for them to be valid is absolutely absurd. They are already the supreme law and the states cannot do anything to abrogate them, nor can they simply ignore them without legal or other repercussions.

    If the states want to further limit their own power over their citizens, then they are welcome to do so. However, as a minimum, they must abide by the limits on government expressly dictated by constitutional law. No opinion or decision by the judiciary is necessary to apply the Bill of Rights to the states.

    The incorporation argument sounds like a bit too much judicial arrogance to me. And perhaps a bit of state stubbornness as well.

  2. The “incorporation” argument is wholly absurd if we are to pretend that only certain rights are protected at both the federal and state level. Can the states deny us the right to free speech? Can they deny the right to a trial by jury? Can they lawfully inflict cruel and unusual punishments? If they cannot, then how can they infringe on the right to keep and bear arms?

    Either these are all individual rights protected by the Constitution, or they are not. Picking and choosing which ones are or are not is not only impractical in a legal sense, but it denies the very principles of individual liberty and the purpose of our Constitution. The fact that our Supreme Court recognizes such a ridiculous concept makes one question whether or not their “supreme” status is deserved or legitimate.

    Why is it so hard for people (and politicians/judges) to read the Constitution and apply it accordingly?

    The idea that the Bill of Rights was originally intended to restrict only the federal government is not a new one. It dates all the way back to Barron v. Mayor of Baltimore, 32 U.S. 243 (1833). A man claimed that he had certain due process rights under the Fifth Amendment against the City of Baltimore. The Supreme Court tossed his case and basically said, “The Bill of Rights was added to the Constitution because everyone was afraid that this new federal government would start exercising massive power and take over the country. People weren’t afraid of their state governments. Therefore, the Bill of Rights should be read to apply only against the federal government. If it were meant to do so, then the language would say so explicitly.”

    The legal aspects of the argument aside, it is fairly indisputable from a historical standpoint. People feared federal dictatorship but generally trusted their state governments. Indeed, many of the rights under the Bill of Rights are rarely applied against the states because the state constitutions are often more protective than the federal constitution. It was not until the 14th Amendment that the Constitution began turning its attention to the states. (Also, look at the due process clause of the Fifth Amendment and then the due process clause of the Fourteenth Amendment. The latter would be entirely unnecessary if the former were meant to apply to both the federal and state governments.)

    The idea of incorporation and limited applicability of federal constitutional rights against the states is not new, and it is supported by the historical justifications for the original Bill of Rights.

  3. I have never understood the entire “incorporation” argument.

    It would seem, by any standard of reason, that any right guaranteed to individuals by the federal government and protected/secured by the Constitution – as it is the supreme law of the land – would naturally be a right that cannot be infringed upon by the states as well. After all, the enumerated rights in our Constitution are rights held by individuals with or without any written document. Our Constitution merely guarantees that those rights are protected by (or from) the federal government.

    The “incorporation” argument is wholly absurd if we are to pretend that only certain rights are protected at both the federal and state level. Can the states deny us the right to free speech? Can they deny the right to a trial by jury? Can they lawfully inflict cruel and unusual punishments? If they cannot, then how can they infringe on the right to keep and bear arms?

    Either these are all individual rights protected by the Constitution, or they are not. Picking and choosing which ones are or are not is not only impractical in a legal sense, but it denies the very principles of individual liberty and the purpose of our Constitution. The fact that our Supreme Court recognizes such a ridiculous concept makes one question whether or not their “supreme” status is deserved or legitimate.

    Why is it so hard for people (and politicians/judges) to read the Constitution and apply it accordingly?

    Common sense is dead.

  4. It would seem that the federal government wants to force all citizens to become criminals. Americans are going to own firearms no mater what the Federal Government dictates even if they have to own them ilegally. I will not concede my second amendment rights to anyone and that includes the Government and anyone else that chooses to try to deprive me from protecting my own property and my family. Good Luck America!

  5. Out of curiosity, why does the discussion of Nordyke v. King not discuss that the Ninth Circuit voted to rehear the case en banc and vacated the original decision?

  6. Good points there Nick.The problem is that states accept federal funding which was the trap that castrated them,essentially.But in theory I wholeheartedly agree.Furthermore,if they rejected all federal funds and acted like a sovereign states they would indeed be sovereign states.

  7. Filing a lawsuit over this act was a HUGE mistake. The purpose was to assert state sovereignty, but how can it be state sovereignty if permission is needed from a federal court?

    The state should have simply enforced this law, period, regardless of what any federal official said. That’s how state sovereignty is supposed to work.

  8. This should prove interesting if the Feds refer to the recent decision from the courts that marijuana is under Federal jurisdiction because ‘it may’ cross a state line. So much for the ‘standing’ aspect of the law requiring a showing of actual damages. The feds want it both ways.

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