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Rejecting the Incorporation Doctrine

By on October 19, 2012 in Uncategorized 6

by Bill Evelyn, State of Georgia Tea Party

NOTE: The Following is a letter that was sent to Jerry Henry, Director of GeorgiaCarry.org

Dear Mr. Henry,

I heard on the news today that you have asked the Supreme Court to make a ruling on the ban of guns in churches in Georiga.  I want to prove to you that this is a very bad way to approach this issue.

The 2nd Amendment restrains the federal government from regulating arms and gives those powers to the state governments via the 10th Amendment.  In Georgia’s Bill of Rights the State government is restrained from prohibiting a person to arm themselves, but with regulations.  In essence the state legislature can outlaw all weapons in Georgia if is deems so, but those legislators would be risking their seats in the next election.  I don’t see this occurring.

The ban of guns in churches was passed by the Georgia legislature 143 years ago during reconstruction and can simply be repealed.  This is the way we should move forward on this matter.

When you ask the Supreme Court to rule on a state matter, you are asking for the federal government to regulate arms reaching into the state.  That is called incorporation doctrine. This link will take you to a very good explanation of the incorporation doctrine.  http://tenthamendmentcenter.com/2009/11/24/kevin-gutzman-freedom-vs-the-courts/.  It is a discussion between Michael Boldin of the Tenth Amendment Center and Professor Kevin R. C. Gutzman, whom I consider to be the most learned man regarding incorporation doctrine.  At the 13 minute mark Professor Gutzman specifically talks about the 2nd Amendment.

Take the case of MacDonald v. Chicago.  The NRA asked the federal government (Supreme court) to regulate arms in the City of Chicago and the sovereign state of Illinois.  If the state is sovereign, and the 2nd Amendment restrains the federal government, why would anyone ask the federal government to reach into the states and regulate arms.  This gives precedence and a Liberal court could just as well rule opposite and take everyone’s guns in every state.

The best way to handle this is to get the state legislature to repeal the church ban or any regulation which dictates the carrying of weapons.  The legislature reflecting the will of the people will work this out politically.

Thank you for your attention.

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onetenther
onetenther

There is one important clause in the 14th amendment that actually takes away the courts ability to apply the incorporation doctrine to the 2nd amendment.  The final sentence says that congress shall have the power to enforce this amendment.  I assume that is a pretty wide application and why couldn't congress use that power to override the incorporation doctrine?

Monorprise
Monorprise

 @onetenther I doubt very much congress as a whole has any driving interest outside of its own power.   Remember it is the deadlock of congress which is the greatest security of liberty & constitutional limits, not congresses's actions. Unfortunately as (at least in the Federal courts opinion) congress has already acted such deadlock no longer offers protection in this or many other matters.  If your thinking to have congress act again I'm all for that but my my point is:  Don't hold your breath waiting for congress to act magnanimously. In any event the Federal Constitution is already effectily dead as a Constitution of civil government anyway.  So what your talking about is congress simply changing Washington's policy via the States for a time, no doubt desirable for those of us who live here but not a restoration of usurped rights simply a relaxation(for a time in a limited respect) of their usurped imperial power,

kenlbear
kenlbear

The right to self defense and to arms is one of those "inalienable rights" DEFENDED under the @nd Amendment.  It is NOT just a Federal law.  Inalienable rights cannot be "outlawed" by any state.  The 10th Amendment is used here to disguise an attack against the right of self defense.

Mike Maharrey
Mike Maharrey

 @kenlbear  The Constitution created a federal government. The Bill of Rights was included to further clarify the limits of federal power, as the preamble to the BOR explains.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 insure the beneficent ends of its institutionThe Second Amendment clarifies that the federal government cannot infringe on the right to keep and bear arms. But since the Constitution defines the federal government and not the state governments, it logically follows that the BOA was not intended to bind the states. In fact, even a cursory study of the original intent bears this out.It is true that no person or institution should infringe on a natural right. But that fact does not empower the federal government to "police the states." It is up to the people of the states to enforce their state constitutions and maintain vigilant control over their state and local representatives to ensure those rights remain protected at that level.

onetenther
onetenther

 @kenlbear  @nd Would it make a difference what the motives were or would it only make a difference if it was true or not?   In my opinion this article is correct in that 2nd amendment only applies to the federal government.  States indepently decide if they want people to have weapons or not.