#gun control

APPLICATION

Well, I was interested in resolving the contradiction and it turns out it wasn’t difficult to do so. You see, the rights guaranteed by the Bill of Rights only applied to the Federal Government, not the states or localities. In fact, the Senate considered and rejected an amendment as part of the original Bill of Rights that would have applied the Bill of Rights to the states.

In other words, the 2nd Amendment did prohibit the Federal Government from even the most basic of regulation, but it did nothing to prohibit any other level of government from doing whatever they wanted.

If we look at the understanding of the founding era, there was no standing federal army. In fact, the Constitution specifically put barriers that made it difficult to form one such as the requirement that money allocated to an army must expire after only two years. The founders viewed the state militias as the proper place for military organization in peacetime and also as the best line of protection against any attempts by the federal government at tyranny.

The 2nd Amendment, then, was a guarantee that the federal government could not undermine the state militias that were viewed as a bulwark against tyranny.

That’s why there’s no contradiction between Madison’s (alleged?) comment that the Federal Government cannot even regulate cannons and other government’s laws completely banning firearms within their limits. The 2nd Amendment only applies in one of those cases.

ADDENDUM

But wait, why do we think that the Bill of Rights applies to the states? In fact, we know that it does because they’re bound by the 1st Amendment’s freedom of speech and no government support for religion clauses, right?

Okay, this gets complicated fast but stay with me.

In 1861-1865, we fought a war over whether people could be property and, thankfully, the right side of that question won. In order to secure that legacy, we passed three amendments to the Constitution, the 13th, 14th, and 15th, in 1865, 1868, and 1870. Section 1 of the 14th Amendment changed things.

You see, Section 1 of the 14th Amendment says the following:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

But here’s the question, what does “due process of law” mean? You’ll note it isn’t defined in the amendment and it’s not overly clear from the rest of the Constitution. So, if you’re a judge who’s asked to interpret that, what do you do?

Well, starting in 1884, the courts began to look at the other parts of the Constitution. Specifically, they started looking at those parts of the Bill of Rights that deal with due process. In 1884, the Supreme Court considered the 5th Amendment’s right to indictment by a grand jury, but decided that it did not apply to the states. However, in 1897, the Supreme Court looked at the 5th Amendment’s protections protection against the taking of property without due compensation and applied it to the states via the due process clause.

Since then a number of parts of the Bill of Right have been applied to the states as well as to the federal government. This has come to be known as the incorporation doctrine.

WAIT, SO THE BILL OF RIGHTS DOES APPLY TO THE STATES NOW?

Not quite. You see, parts of the Bill of Rights have been applied through various Supreme Court cases, but other parts haven’t. At the time I write this in 2023, the 3rd, 7th, and 9th Amendments as well as parts of the 5th and 6th have not yet been applied to the states. The 10th Amendment doesn’t apply to the states at all since it is generally understood to deal with the relationship between federal and state and not individual rights.

However, this is all still a work in progress. The most recent part of the Bill of Rights to be applied under the Incorporation Doctrine was the 8th Amendment’s protection against excessive fines which was only just applied in 2019. Before that, the 2nd Amendment’s protection of the right to keep and bear arms was only incorporated in 2010, and the others came about at various points in the 20th century with most of them in the 1960s. [6]

WAIT, CAN YOU SUM UP?

Yeah, this is probably good time for that.

In 1791, 10 amendments were made to the Constitution which prevented the Federal Government (and only the Federal Government) from abridging certain individual or state rights.

The 2nd Amendment, in particular, at that time, was understood to prevent the Federal Government from laying any regulations at all on arms, this being viewed as the responsibility of the state government.

In 1868 and 1870, further amendments were passed that prevented the states from violating certain rights without “due process” which was not defined.

Starting in the late 1800s and continuing to today, the Supreme Court has interpreted these clauses to require certain parts of the Bill of Rights to apply to the states as well as to the Federal Government.

The one we’re interested in is that, in 2010, the Supreme Court decided that the 2nd Amendment applied to the states.

CONCLUSION

So, after all of this, I’ve got a few thoughts that are... interesting, to say the least.

I’m reasonably certain that reading the 2nd Amendment as a blanket ban on any regulation of weaponry is an accurate original interpretation. However, it’s also clear that this understanding is premised on the idea that states should be able to regulate weaponry.

The fact that the 2nd Amendment is now applied to the states does not come from a clear reading of the Constitution, but comes from a Supreme Court ruling relating to a judicial doctrine that attempted to address an unclear clause in the Constitution.

In other words, we haven’t gotten to our current state of jurisprudence regarding gun rights through any well thought out understanding or agreement regarding the nature of guns in our society or any clear mandate from the Constitution, we’ve gotten here entirely by accident and through interpretation of unclear sections of the Constitution.

So... yeah... Make of this what you will.