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Federalism, Revisited

David Hoyt
Apr 11, 2011 at 12:31 PM

Does the Bill of Rights apply to the states?  For instance, is the Second Amendment inviolable by local government?  

CT

Clarence Thomas, probably the most libertarian-friendly justice currently on the Supreme Court, thinks so, as he expressed in his concurring opinion in the landmark McDonald ruling last summer.

But what do you say?

 

he's mostly right, the second amendment works best as an absolute, and since it's a constitutional amendment, it is specifically enumerated, so violating it would violate the clear sanction of the tenth amendment

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According to the most popular interpretation of the 14th amendment, yes, they are applicable.   However, originally, the constitution only restricted the federal government (and the state governments to an extent by disallowing them to perform functions under the powers they ceded to the federal government).

There actually were states that, upon immediate adoption of the constitution, actually had official religions, albeit they quickly went away.  Connecticut is a good example, they didn't lose their official Church until they made a new state constitution in 1818.  I think this is a good example of how the original Constitution was thought of as a restriction solely upon the Federal government.  It would not be unconstitutional for a state government to go completely against a bill of rights amendment.

I'm torn on the McDonald ruling because while I think gun control is stupid, I know law is a world of precedents and this ruling is another precedent set that allows the Feds to get away with infringing the sovereignity of the states.

 

Creighton Harrington's picture

The language of the Second Amendment differs from some of the other first ten, in that it does not say "Congress shall make no law..." but makes a blanket statement: "...shall not be infringed." This suggests strongly a universal ban on ANY restrictions on the ownership and carrying of all weapons, not just guns. This would include the states.

The First Amendment is more troublesome, and there is some merit to arguments that it does not bind the states, though the intent of the founders is clear that it should.

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There actually were states that, upon immediate adoption of the constitution, actually had official religions, albeit they quickly went away.

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