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Fri Jan 11, 2013, 12:02 AM

On the BOR, 2nd Amendment and Incorporation [View all]

My apology if this has already been addressed…

I’ve been hesitant to post this as I have been hoping that another poster with more community credentials (read: larger post count) would address this; however I have yet to run across it. As such, I think that there is an important aspect to the gun debate and other Bill of Rights questions that has to be acknowledged as it relates to “original intent” and “Founding Fathers” arguments.

I have observed many arguments that assert that the Second Amendment was placed in the Bill of Rights as a bulwark against a tyrannical or otherwise illegitimate government overreaching its constitutional authority. On the surface this seems like a semi-legitimate argument as questions of natural rights (in the Lockean sense) and the legitimacy of government authority were issues heavily debated in the run up to the Revolution. So, the argument goes, the Founding Fathers placed the Second Amendment in the Constitution to dissuade any excessive malfeasance on the part of government because it gave the people a means in which to resist said malfeasance. Unfortunately, Constitutional history does not support that assertion.

You see, the Bill of Rights was not extended to individuals in the several states until well after the Constitution’s ratification. As a matter of fact, it was the Fourteenth Amendment that eventually extended these rights, well most of these rights, down to the individual, and even then not until well after the fourteenth was adopted. This is known as the incorporation of the Bill of Rights. Previous to these Supreme Court decisions the Bill of Rights was viewed as a restriction on what the federal government could do and that the states could violate any or all of these with impunity. Therefore, the state in which you may live, previous to incorporation, could restrict any of the activities covered in the Bill of Rights and only state laws or constitutions could grant you protections. In other words, if the state deemed it proper they could tell you what you could say, take your property, make you go to church, confiscate your guns or any other thing we would all find as an affront to our modern sensibilities.(some of which they did)

Now, what does this mean in regard to these Second Amendment arguments we keep seeing? For one, if the original intent was one of strictly curbing federal activity then there is no way that you could construe it to mean that the individual was empowered by the amendment beyond limiting federal involvement. Hence the well regulated militia aspect of the Second is an empowerment of the several states, not individuals. In addition, there is little chance that the founders could have imagined that the amendment would be used as an argument for general, disorganized rebellion against a tyrannical government. Hell, even the Civil War was one of organized STATE militias.

All that said, all the opinions we have about what is and what is not constitutional is, at the bottom of the well, moot. The only opinions that matter are nine people in black robes.
There is much more here but as I am no Constitutional scholar I will leave any additions to those who may be more knowledgeable than I. Thoughtful responses may get a puppy!

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Beearewhyain Jan 2013 OP
jmg257 Jan 2013 #1
Beearewhyain Jan 2013 #3
jmg257 Jan 2013 #11
2naSalit Jan 2013 #27
jmg257 Jan 2013 #33
former9thward Jan 2013 #64
pipoman Jan 2013 #2
Beearewhyain Jan 2013 #4
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pipoman Jan 2013 #19
jmg257 Jan 2013 #16
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Beearewhyain Jan 2013 #28
jmg257 Jan 2013 #31
Glassunion Jan 2013 #5
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ancianita Jan 2013 #14
Beearewhyain Jan 2013 #21
Glassunion Jan 2013 #22
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jmg257 Jan 2013 #15
Historic NY Jan 2013 #6
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cthulu2016 Jan 2013 #7
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pipoman Jan 2013 #38
xoom Jan 2013 #80
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cthulu2016 Jan 2013 #65
jimmy the one Jan 2013 #36
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jimmy the one Jan 2013 #37
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jmg257 Jan 2013 #59
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