Want to make a bunch of liberty minded folks really mad?
Suggest that the Second Amendment doesn’t prevent the state of California from enacting an “assault weapons” ban.
Believe me, it will stir up a hornet’s nest faster than a 9-year-old with a pointy stick.
I know. I’ve done it.
I’ve got to be honest, this subject makes me want to grow some hair so I can pull it out. I feel like I’m walking the wrong direction down a Los Angeles freeway at rush hour.
The Bill of Rights was never intended to bind the states. ZERO evidence exists showing that the ratifiers intended the first 10 amendments to apply to state governments. We know that Madison’s original proposal actually did have several of the amendments applying to state governments, and that idea was rejected. And yet some people still insist the ratifiers meant for them to bind the states in their final form…because…well…they want them to.
But most federal liberty enforcement squad advocates appeal to the incorporation doctrine to make their case. This is also hogwash. The 14th Amendment was never intended to apply the Bill of Rights to the state governments. If you believe it does, and you now find yourself spiraling into an apoplectic fit of rage, please take the time to read this article.
You will find the most voracious conservative and libertarian defenders of incorporation and federal enforcement of the Bill of Rights on the states in Second Amendment circles, likely because the Court has surprisingly handed them some favorable opinions. But as I have argued before, allowing the federal government to serve as a liberty enforcement squad is a fool’s game. And while you may get a favorable outcome occasionally – like the Second Amendment decisions – for the most part, incorporation has allowed federal courts to narrow the definition of basic rights and then apply that narrow vision on all 300-plus million Americans. Think about that the next time the cops stop you at a DUI checkpoint.
I really don’t think most liberty lovers who embrace incorporation have actually thought through their argument, especially the Second Amendment crowd. They see a good result and they think it will expand liberty. Sadly, they willingly toss aside constitutional principle in return for that good result.
Here’s an example of the argument I get when I suggest using the feds to protect the right to keep and bear arms at the state level might turn out to be a bad idea.
“Through the incorporation doctrine, SCOTUS has limited the powers of the states (consistent with the limitations on the powers of the federal government imposed by the Constitution), and some of us believe that limiting the power of all government (federal, state, or city), is a good idea.”
Notice the stated goal – he wants to limit the power of all government. True, incorporation allows the Supreme Court to limit state power. But he fails to see, or simply ignores, the fact that in diminishing state power, incorporation actually increases federal power – drastically. The Supreme Court is not some independent tribunal. It makes up part of the federal government. By empowering it to serve as a five-man liberty enforcement squad, you dump almost unlimited authority on the banks of the Potomac.
Remember, all governments violate rights. The question then becomes where do you stand a better chance? The founders believed rights would be better protected in a decentralized system. They viewed consolidation of power into one central government the gravest threat to liberty. They built a political system on that ideal.
They were right.
Monopolizing power is bad news! But we’ve tossed aside the founder’s vision for a few pragmatic victories. In the meantime, the federal government, led by the Supreme Court, rode roughshod over individual liberty for more than a century, swinging the incorporation doctrine around like a medieval mace.
Decentralizing comes with risks. States will do things to violate your rights. But with 50 states, you at least have the option of moving from the most oppressive. When the feds rule, you have no place to hide. You also have a much better chance of turning a small boat than you do steering the mega-government in Washington D.C. Competition serves us in government in the same way it serves us in the business world.
So why do we insist on centralizing? How do we miss the danger?
Centralizing authority will never advance liberty in the long run.
Keep a very important thought in mind. When you give somebody a boot, they won’t likely stomp their own neck.