There was a video posted by Jack Hunter called "Gunning Down the Constitution" that comments on what the outcome of the Supreme Court's decision on the Chicago gun ban would entail for the concept of states' rights.
Hunter's argument is essentially that the Bill of Rights are amendments to the federal constitution and thus inapplicable to the states. So, if Chicago/Illinois wants to ban guns, while it may go against the the 2nd Amendment to the US Constitution, it does not go against the law of the state of Illinois (at least by ruling of Illinois courts). Therefore, while it may be illegal for the federal government to ban guns, it is not illegal for Illinois to ban guns in Illinois.
The danger Hunter presents is that if the Supreme Court declares the gun ban of Illinois illegal, it means that the 9th and 10th amendments become null because the federal government is dictating what a state government can make law (outside of the enumerated powers of the federal government in the Constitution). The Bill of Rights prohibits what the federal government may make law, but does not prohibit what the state government may make a law.
Allison Bricker of the Smoking Argus recently posted a rebuttal article to the video arguing that the states have the ability to check to federal government's powers and the federal government has the ability to check the state government's powers. She claims that the states, upon entering the union, agreed to the principles of the union which are defined in the Declaration of Independence, Constitution, etc. Her main argument is that America was set up so that natural rights are not infringed by any government.
They recently had a debate on the libertypulse.com radio stream. Bricker argued that no government has the right to infringe upon natural rights. Her argument tended to be centered an philisophical concepts and less on concrete US law, although she mentioned organic law as her defense.
I personally agree with Hunter that the Constitution declares what the federal government may do as well as specifically prohibiting what it may do and that a state government is not bound by the US Constitution in making laws. If it were, than one could make the case that the US Constitution, if applicable to state governments, would allow them to coin their own money, make tarriffs, etc.
So while it would be dumb and unconstitutional for Washington DC to declare a gun ban, it is dumb but not unconstitutional for Illinois to declare one. If one were to disagree with Illinois' ruling, then they can move, or as Reagan would say, "vote with your feet."
I think this is an interesting argument and would like hear what other YAL members have to say on the subject: Do you agree with Hunter, Bricker, or another solution entirely?
Until the courts want to give back the powers they've taken from the states and given to the federal government, I'd have to say that the rest of the Bill of Rights should be incorporated to the states. All or nothing. This cherry-picking crap is ridiculous, and can't possibly be intended by either the original Constitution or the 14th amendment.
Personally I believe it is every American's right to have the liberty of owning a firearm for personal protection. Granted, there should certainly be restrictions so that things do not get out of control, and registration is necessary (but that's another topic for another day).
Nevertheless, I am certainly a fan of states' powers, so this presents a dilemma for me, because I hate cherry-picking, too. In all honesty, if Illinois has presented a legitimate, thorough, and logical argument as to why the ban has taken place, then I don't see why the ban is such a horrible idea.
I like to thing of states' rights as (and this is how it was taught to me in simple terms) the states can only be "more strict" in their laws than the federal government. So it is a matter defining which direction is "more strict." For instance, say that for some ungodly reason the federal government makes it a law that no one can eat ice cream on Monday. Well, then all of the states would have to follow, because allowing ice cream to be eaten on Monday would be "less strict." But, the states reserve the right to place the same ban but also on Thursday, or any other day--denoting that extra days are "more strict."
By using the above definition, then the State of Illinois has every right to ban guns, assuming that it is the "more strict," path...
But on the other hand, it is infringing on each citizens' right as Americans to own a gun/firearm, so therefore, it cannot be allowed. It may be a "more strict" law, but since it infringes on a liberty already in place, assuming it has precedence, then the gun ban is unconstitutional. However, restrictions may certainly be put in place, as long as all citizens have access to guns.
Truly every every State is so, Sovereign. They have all agreed to and, by entering into the union of the United states of America, they will abide by and uphold the principles of the Constitution of the United States. However, the federal government must do the same. One way to change the Constitution is by amendment, but according the declartion of independance, a new constitutional convention may be our last hope. Such a move by the states would imeadiately invalidate the federal government.
I disagreed with the video/article when Jack first posted it and gave this response:
Can't agree with Jack here. The Constitution was meant to restrict the power of the federal government to those things outlined in the Constitution and its amendments, leaving all other matters up to the states (as it says in the 10th amendment). The 2nd Amendment states clearly that "the right of the people to keep and bear arms, shall not be infringed." Because it is in the Bill of Rights, gun ownership is protected at a federal level and any law that infringes upon the right of American citizens to own a firearm is wholly unconstitutional. The Constitution specifies precisely which powers the federal government has. The 10th Amendment clearly states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The 2nd Amendment prohibits infringement upon gun ownership by any entity, be it federal, state, or local.
If states are free to make laws that ignore the Constitution completely, what's to stop a state from making a law that legalizes slavery, or bans all religions but one, or restricts the press of any state? That's the precedent that would be set. Any state could flat-out ignore the United States Constitution, if that state's Constitution didn't include an amendment/right to that effect, and could make any law they wanted that stood in direct contradition. The entire purpose of the Constitution is to spell out specifically what power the federal government is supposed to have, and everything ELSE is left up to the states. The Constitution would be virtually null and void if states could make laws in direct contradiction to it. The entire point is that it limits the federal government to the powers listed therein, but those powers ARE given to the federal government
While I don't condone the disarming of law-abiding citizens, it's interesting to think that if the Supreme Court were to uphold my home state of Illinois' right to ban the owning of firearms it might very well provide a modern example of State's Rights and the builtin limitations of our Federal Constitution.
I agree (as a layman and armchair Constitutional enthusiast) wholeheartedly with the view that the Constitution is a codification of the relationship between the Federal and State Governments, and between the Federal Government and the People; it makes a certain amount of sense that prohibitions against the Federal body would not necessarily be prohibitions against the State. At the same time, if it is understood that the First Amendment, which specifically states that Congress shall make no law, applies equally to State Governments, why would the Second Amendment, which does not make such a distinction, be treated differently? Conversely, if the Second Amendment does not apply to the States, would they then be Constitutionally permitted to suppress political speech?
This will be a case worth watching closely; either way it swings, there will be a defined shift in precedent.
Jack is right and the clearest example of this is that upon creation of the union various states, such as Conneticut and Massachusettes, had state religions and they continued to have them after ratifing the constitution. Everything in the US Constitution is applicable only to the central, federal government. The states can break an amendment to the US Constitution and not be in the legal wrong. A main reason the Jeffersons and Anti-Federalists were for state sovereignity is that it would be much easier for the people of Pennsylvania or New York or whatever to change their state laws, but not a federal law. So, yeah, a state could become overpowerful, but people can still vote them out when their term is up.
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