A case for incorporation

My fellow blogger and oppressed Illinois gun rights activist at We Are the Militia made a point way back in March that I think needs to be repeated. In his post, he explores the language of both the First and Second Amendments, and makes a pretty compelling case for the argument that the Constitutional grounds for incorporating the Second Amendment–that is, applying it not only to the federal government, but to the states as well–is actually stronger than the argument for incorporating the First Amendment.

Currently, aspects of the 1st Amendment are applied to the States by the 14th Amendment, whereas the 2nd Amendment is not considered to be applied to the States.

I find this odd, given that if you read the text of the two amendments, a case can be made for a stricter adherence to the right of the 2nd Amendment over the 1st.

He then points out that the 1st Amendment states that “Congress shall make no law . . . .” In other words, the only entity of government prohibited by the First Amendment from suppressing freedom of speech, freedom of religion, etc., is Congress, the makers of our federal laws. Nothing is said in the First Amendment about other units of government (the states, for example) making such laws.

I am not trying to argue that states (or counties, or municipalities) should have the power to control what people say, or compel them to worship in a manner dictated by the state. I am quite grateful for the incorporation of aspects of the First Amendment, under the Due Process Clause of the Fourteenth Amendment.

However, if the First Amendment can be said to apply to the states, how can it be argued that the Second Amendment does not? The Second Amendment, after all, describes a right that “shall not be infringed”–with no limits placed on by whom it shall not be infringed. In other words, the Second Amendment does not state that “Congress shall not infringe” the right to keep and bear arms–if anyone infringes on a right, it cannot properly be claimed that said right “shall not be infringed.”

The right to self-defense is a fundamental, natural, human right. Any unit of government that tries to deny citizens any means of exercising that right is, by extension, denying–and thus violating–that fundamental right. Any such violation is therefore illegitimate.

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4 Responses to “A case for incorporation”

  1. TJH Says:

    Note that the 14th Amendment has been interpreted as creating a second class of citizenship that is distinct from that held by the people of the States. To execute it in any other way would be to create a new power of the federal government, i.e. the States are sovereign and so are the people in those states. (I may be oversimplifying the matter.)

    That’s why it’s important for your rights to also be codified in the constitution of the state where you reside.

    I realize this creates bizarre situations in states like Illinois — where a militia may exist and be summoned by the Congress, but the state does not allow Citizens to freely possess and carry arms — but that’s sort of the problem for those that created a broken state constitution, or an illegitimate government that continues in violation of man’s natural rights as well as its constitution.

    This is not to be interpreted as a criticism of the outstanding effort by the Citizens in Illinois. Article I, Sections 1 and 22 of the Illinois Constitution state it pretty clearly, and there is no clause that specifically excludes firearms. However, the fascism clause in Section 22 needs to be removed.

  2. Gringo_Malo Says:

    I agree that the Second should apply to the states if other amendments of the Bill of Rights do. Of course, I live in Texas, so the issue probably seems less pressing to me than to you. It’s not the state that tries to impose new restrictions on my gun rights, it’s the feds.

    Texas has a pretty good RKBA clause in its constitution. Not as good as Vermont’s, but not bad. The Legislature recetly enacted a “Castle Doctrine” law. Texas is also a “shall issue” CHL state. I dislike begging the state for permission to exercise a God-given right, but, as a practical matter, I have done so. Texas also has reciprocity with most other “shall issue” states, so Texas CHL holders can be legally armed from the Rio Grande to the Canadian border, provided that they avoid the Northeast, the Left Coast, and certain people’s republics in the Midwest.

    On the federal level, pro-gun folks should not forget the Ninth Amendment. That 43 states have RKBA clauses in their constitutions would seem to indicate that its a traditional American right, and therefore protected by the Ninth.

  3. straightarrow Says:

    a brilliantly drawn comparison with an equally brilliantly drawn conclusion. You are in good company, Kurt.

  4. 45superman Says:

    You are in good company, Kurt.

    DW (the author of We Are the Militia) is definitely a sharp guy. I wish he had more time for blogging (he also writes Chicago Handgun Rights, by the way), because everything he does write contains some valuable insights. I’m kind of chomping at the bit to talk about something else he brought up at Illinois Carry, but hasn’t gotten around to blogging about yet.

    I don’t want to steal his thunder on something else that he discovered (that would never have occurred to me), but it’s another very good point, and one that I think needs to be made.

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