The erosion of states’ rights

The federal government has for decades slowly tightened their grip on the states. Whether it be through legislation arising in Congress, court cases paving the way through the judicial branch or the president exercising executive authority, Washington D.C. is now our heart and soul.

Americans must understand that in our history the federal government has not always been as expansive and encompassing on our lives such as it is today. The start of our country found men who felt as though the states were the entities closest to the lives of the citizens in the country. Much of this feeling came from the grip for which England had upon the Colonies. It has only been since the Great Depression and President Franklin D. Roosevelt’s New Deal that the federal government has shaped our daily lives so significantly. Today, as has been the same for the past century, we find ourselves with the question of do we want to relinquish more power to the federal government.

The United States Supreme Court recently granted certiorari and heard arguments regarding the second amendment case McDonald v. Chicago. The case poses the question of whether the second amendment should be binding upon the states through the incorporation of the fourteenth amendment due process clause.

We must first remember what the second amendment says, “the right of the people to keep and bear arms, shall not be infringed.” We must also remember that the citizens are being protected from the federal government in the Bill of Rights not the states. The question for which McDonald poses is at the core of states rights.

Throw out the argument of being for or against the possession of a handgun and look at the larger picture. If states lose the power to handle gun laws and act under their own power how much sooner will other rights be taken away from the states. It is not sensible to make Texas adhere to the same law as Connecticut does. It makes no sense from both an ideology perspective and economic perspective.

The federalist system we adhere to on a daily basis with the federal, state and local governments is crucial to our way of life. With the building of power in Washington we are slowly seeing this system erode away. State’s rights are being transplanted into the monster that is the federal government.

Every point in our day we live by the rule of government. Do we really want the people who are furthest away from us making the simplest of decisions in our daily lives? The individuals at the local and state level have a better feeling for what is best for us in our hometowns. Gun laws in each state vary and the people are the ones that need to make these decisions. The people will not be given this ability in their separate cities, counties and states if the federal government believes a uniform law suits the country best.

  • Shotgun

    Every one of the amendments that make up our Constitution MUST apply at state level also. If they don’t, then any state government can simply disregard the Constitution and the protections that it is supposed to provide the citizens with regard to the legislative process. Using the model the writer seems to favor, a state could enact any number of repressive laws and there would be no protection for the people. The state would not be bound by the Constitution.

  • Shawn

    Joel,

    States do not have rights, people do. Rights come from God. States have power that they derive from the “consent of the governed”. States can still “Regulate” arms. The only expectation will be that they do not “Infringe” upon the right of the people to keep and carry them. It’s to bad you haven’t researched the congressional records on the 14th amendment, much less the Founders statements on firearms.

    Your story is “Off the Mark”.

  • HerbM

    The above article is based on a mistaken premise that the states have the power to abridge the rights of citizens.

    Neither the states nor the federal government have this power — both are charged with the duty (and power) to protect the rights of citizens.

    It is a false dichotomy to claim this is states rights vs. federal power, where it is based actually on the constitutionally created tension between the state and federal governments CREATED SPECIFICALLY to protect the rights of the people.

    Were there any doubt of this (there never really was) the 14th Amendment made this explicit.

    You (nor I) do NOT lose any rights when we cross a state line. Our rights are unalienable.

    The Right to Keep and Bear Arms is as much fundamental and necessary (the Constitution declares this explicitly also) as the rights to free speech, free press, assembly, religion, thought, or any other.

    No American may be deprived of any of these rights without abridging the provisions of the Constitution.

  • se7en

    So, you’re willing to let the state decide if and when you can exercise your rights? Own a gun, practice a religion, speak freely, peacefully assemble? Gets complicated, doesn’t it?

  • d.w.hudson

    Yeah, I’m sure I read the second amendment as saying “the right of the people, except in Connecticut, shall not be infringed.

  • Andrew Frechtling

    I suggest you read Akhil Amar’s excellent treatrment of this subject in his book “The Bill of Rights”.

    You argument is the same that a Ku Klux Klansmen would have made in the post-Civil War South. Faced with a situation where freed slaves and Unionists were being disarmed and murdered by whites in the former Confederate states, Congress extended the protections of the Bill of Rights – including the right to bear arms – to all citizens regardless of which state law they lived under. The Cruikshank decision was an attempt by the Supreme Court to roll back the effects of this, the Fourteenth Amendment.

    Cruikshank is a permanent stain on American jurisprudance, and I predict McDonald will wash that stain out.

  • DeadCenter

    While I certainly agree with most Federalist arguments, this one doesn’t hold water. The right to keep and bear arms was never granted or given by the US Constitution, it is and always has been a part of the fundamental human right of self defense, from both criminals and one’s own government. The US Constitution simply acknowledges that fact and provides a VERY potent admonishment for governments to not even THINK about restricting said right. An admonishment that most states have ignored for the last 125 years I might add. The 14th amendment to the Constitution extended the protection of all of those fundamental rights to every citizen of the US. To say that a right such as the 1st amendment, which begins “Congress shall make no law…” applies to the states BUT a numerated specific stating “the right of the PEOPLE….” does not is absolute absurdity. Not to mention the fact that almost ALL of the state constitutions have similar statements of that basic right written directly into them. If you want to make an argument against some off the wall, manufactured ‘right’ why not start with the right to kill unwanted children and leave the enumerated ones alone. You would have a better argument.

  • Jarhead1982

    Do we want wet behind the ears college punks who have no clue much less life experience demanding that an inherent right as affirmed by the BOR and US Constitution changes because of a border or one lives in a different town? What a moronic concept. The states with their myriad “individual attempts and infringements” on the peoples right to bear arms has been nothing short of a clusterfuck.

    Maybe you should read the actual constitution and let everyone know which of the first 10 amendments “CLEARLY” states those rights not enumerated by the BOR/USConstitution are the states rights to act on as they see fit. Since the right to keep and bear arms IS CLEARLY enumerated within the controls on federal and state government, we really dont want to hear another baseless empathic plea of stupidity that the ruling in Heller and the subsequent ruling in McDonald vs Chicago will endanger states rights to infringe further on peoples individual rights as truly, that is what you are attmepting to portray. You are upset that the states will be held accountable for their infringements. You are upset that all those useless laws are going to be revised and rescinded and commonized making it that much harder for the nazi/socialistic fiefdoms to potray that THEY have the power to grant rights, when the US Constitution and BOR “CLEARLY” affirm that they DONT have that power.

    There are 20,000 plus existing gun laws in the US when one counts all the various, township, city, county and state ordinances. If laws were so damn effective, then explain why violence still exists, in every single country, city, or state that has EVER put gun control forward as the “ONLY” solution.

    Maybe you should review Haynes vs US 1968 where the US SUpreme Court ruled 8-1 in favor of Haynes that no person was required by law to violate their 5th amendment right to not self incriminate themselves. That means any law that requires registration, communication, etc, etc of gun laws that a felons doesnt have to obey. These types of gun law constitute 75-90% of the gun control laws. So again, just what in the hell does “gun control” accomplish if most of the laws dont apply legally to the criminals? Oh thats right, they only control the law abiding, WHY?

    The BOR and the US Constitution is both a control of the government and protection of the individuals rights. By any states agreement to be part of the UNION, they agreed to follow the laws of the land and boy, that is reality.

    That is unless of course you have the hard facts to prove WHY such changes in RIGHT must be made? Of course you dont, your kind NEVER, EVER have hard FACTS to support your emotionally charged unsubstantiated rhetoric.

    USDOJ Background Check & Firearm Transfer Report 2008
    1994-2008 99 million checks, 1.67 million rejections, 58% felons, 68% reduction in felons attempting to buy from licensed source since 1994, 13,024 rejected people prosecuted between 2000-2008 or less than 1%.

    Less than 1% of the posterchild of all gun control laws is enforced and you feel more laws are appropriate?

  • Wiz

    So, it should be OK for each state to establish its own state religion, abridge free speech, house troops in your home without your consent, prevent women and blacks from voting??? Isn’t that what you are saying if the Constitution only applies to the Federal Government?

  • Barry Hirsh

    Joel, the 14th Amendment horse has already left the barn. While it doesn’t eviscerate the 10th Amendment, it does give the central government the authority to insure that citizens of the several states cannot be denied fundamental rights. The Incorporation Doctrine was developed so that the government could have it both ways, and is really a dubious doctrine – on its face, the 14th Amendment already guarantees the 2nd, and imposes it on the states.

    What the 14th Amendment doesn’t do, however, is affect legislated rights – only fundamental ones, i.e. life. due process, takings, etc. Any level of government can legislate “rights”, but they are not unalienable. The right to self-defense, hence the means to self-defense, is, and as such, the states cannot be permitted to stomp on them.

  • theaton

    Amendment X: 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.

    Rights are absolution insofar as I can exercise my rights as long as I don’t infringe on your rights in so doing. It’s really easy to understand if you want to understand it instead of spreading an agenda. The Bill of Rights contains several reference to “the people.” This includes the Second Amendment. It is the right of the people to keep and bear arm and therefore, neither state nor federal governments nor man can infringe it. Do you think states have the authority to infringe on a persons right to free speech, freedom of religion, or to assemble? Can the states perform searches without warrants? These facts were true before the Fourteenth Amendment. The Fourteenth Amendment was needed by the Government to put further restrictions on the people and grab extra power. Section 1. of that Amendment forced slaves to be U.S. Citizens even if they didn’t want it. It also gave us the supposed anchor baby problem but I think the last part of that section invalidates the anchor baby claim. Section 2 further discriminated against Native Americans. We made the citizens but we then took away their representation. Section 2 also changed the way our representatives are chosen. It turned such choice into a popularity contest that now goes to those that can raise the most money and promise the most handouts. Remember also that all women still remained unable to vote.

    I do agree that States are losing rights but not in regards to the Second Amendment.

  • theaton

    Oops, absolution=absolute

  • Mike Ebel

    So in Chicago I have no right to defend myself with the best means I deem fit. But in Texas I can. If you start cherry picking what rights are allowed by State than by your argument some States can check editorials for content before they are printed yours would fit right in with their agenda so at least this one would of been printed still. A right does not change by State Freedom of Life – The right to defend myself and my family how I see fit. The Freedom of Speech – hence your article. The Freedom of Religion – I can choose to worship pine cones if I want. I know you don’t think much of the Second Amendment by your article but If you lose the threat of force to protect your rights you lose all your rights, they then become State privileges at their discretion.

  • BambiB

    First of all, States do NOT have rights. Only PEOPLE have rights. States have powers.

    Second, I don’t hear the author complaining about the encroachment of Federal Power in other Bill of Rights areas that have been incorporated. He’s not complaining that states should be able to limit free speech, or freedom of religion, or that states should be able to carry out warranties searches, or condemn people without a trial. So let’s be clear: This article is nothing but another anti-freedom, anti-gun argument.

    Now, if you want to talk about Federal encroachment in the area of Second Amendment rights, look at the National Firearms Act of 1934 and the Gun Control Act of 1968, both of which INFRINGE the right of the People to keep and bear arms. In other words, in one of the few areas where the Federal Government is SPECIFICALLY forbidden to act, that is, in infringing the right to keep and bear arms, it has acted, and has infringed that right. The current case only tests whether the Second Amendment has the same standing as the First, the Fourth and the Fifth.

    Of course, Federal infringement on Tenth Amendment rights and powers is a huge problem. One method being used to attack that infringement is the growing prevalence of Firearms Freedom Acts in states across the Country. About 5 states have already passed (and many more are in the process of passing) laws saying that guns made, sold and used within the state are NOT connected to interstate commerce and are NOT subject to federal jurisdiction. This will eventually lead to a collision in the Supreme Court, setting the 2nd and 10th Amendments against the case of Wickard v. Filburn (a Roosevelt-era decision rendered under threat of court-packing that basically says everything is “interstate commerce”).

    Wickard is the genesis of the vast majority of federal overreaching. The Wickard rationale is used to justify everything from the BATF to prohibition of marijuana (even in those states where it has been legalized for medical purposes) to the DEA, OSHA, and a dozen other alphabet-soup organizations with tens of thousands of rules and regulations.

    If you want to slay Leviathan, you don’t start by poking your own eyes out. Killing Wickard will be a huge first step – but that step begins with upholding the Second Amendment.

    Finally, as students of the Constitution already know, the Bill of Rights doesn’t GRANT any rights at all. It simply enumerates some pre-existing rights, then says that all the powers not specifically granted to the Federal government belong to the states and the People. You will note that the Second Amendment for example, doesn’t purport to CREATE a right to keep and bear arms, but only says that the right (which already exists) shall not be infringed. So even if you repealed the Second Amendment, the right to bear arms would still exist, there just wouldn’t be a Second Amendment saying so. It’s much like your right to breathe. It’s not written down anywhere, but if the state tried to extinguish that right, I suspect you’d argue the right was still yours – whether written or not.

  • FrankInFL

    First, it is important to understand that states don’t have rights. They have powers granted — loaned — to them by we the people in whom all government power originates.

    Second, if states were presumed to be immunized against the restrictions levied upon the federal government, then (as you point out) it is not simply the Second Amendment which is at risk. The First Amendment, after all, begins: “Congress shall make no law…” Maryland may thus re-adopt its pre-Constitutional stance: “only Catholics may vote, hold office, or own property”. In the deep South, the story would be slightly different.

    Are you sure that’s where you want this to go?

  • ed bernay

    what a bogus article. If you are going to opine on the Constitution and the Bill of Rights, you should at least explain how the southern states violated the rights of freed slaves after the Civil War and how selective incorporation was invented to restore those rights. States and localities cannot violate rights no more than the federal government can; i.e. your local city council can’t vote to require people in that town to get a permit to view violent or pornographic movies in their home; can’t require a permit to go to a mosque nor prohibit people from gathering together.

  • ed bernay

    sorry forgot to mention the 14 th amendment before implementation of selective incorporation

  • Mike

    Why is it that every time someone gets legal action taken that results in more rights for gun owners the anti gun crowd must be on the other side of the issue no matter what…..force the states to honor the bill of rights?….well that would let people own and CARRY guns and since guns are bad, its a states rights thing and we cant allow it to happen.

    Same argument came up when freedom loving folks tried to get a national carry and conceal bill passed….the left SCREAMED about states rights……But federal regulation banning guns?!!! That’s AWESOME and EVERYONE needs it !! No sir no States rights arguments poped up then !

  • JohnH

    Mr. Ogle should read the Constitution. The supremacy clause makes it plain that federal law supersedes state law. He should then go on to read the 14th amendment and the history of it. He would then know that the intent of the authors of the 14th was to protect the rights of the citizens against state infringement and usurpation.

    Finally, why is it that liberals think that federal law trumps the states in other areas, but when it comes to guns, they cry “states rights”.

  • Bill

    What about the 14th amendment, dipstick?

  • JohnH

    This is cute. I came back by to see if others had left comments, and find… Nothing. Do you delete all comments or just the ones that don”t agree with your position? And if the latter is the method of operation, does that mean no one who bothered to comment agrees with you?

  • Tony

    The 14th Amendment was specifically written to expand Bill of Rights protections so that individuals were protected from state governments (e.g., recently freed slaves from post-Civil War southern state goverments). Regardless of the less expansive “original intent” of the Bill of Rights, those amendments must now be viewed within the scope of the later 14th Amendment.

  • Keith

    I disagree. I believe that the second amendment states the federal governments responsibility to protect our individual “right to keep and bear arms” from infringement, whether it be by the federal, state, or local government.

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  • Tom

    2. “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Its already the law, Joe, God’s law and nature’s law.
    Every living being has a right to defend itself

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  • http://energysavers2.com YJ Draiman

    We have the Constitutional Right to Bear Arms and Defend Ourselves – 2nd Amendment

    “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

    It is a right not a privilege, just like you have the right to live and breath.

    Right to Bear Arms is an unalienable right; it cannot be given to someone by someone else, they already have it at birth, and thus, it cannot be taken away no matter how good the reason seems to be.

    “Do not punish or deny the rights of the masses for the sins of the few”

    This applies to any and all rights and privileges stated in the Constitution of the United States.

    The Second Amendment is one of our most cherished. The right to keep and bear arms is what keeps government subservient to its citizenry. Without the right to bear arms, we would have anarchy in the streets, the criminals would still have guns, and violent crime would escalate.

    Thomas Paine:
    “Arms, like laws, discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property.”
    We plan on exercising these rights to the fullest extent of the Constitutional Law.

    Our society today is brainwashed that when some people abuse their constitutional rights we must punish all of society and revoke that right and privilege.

    When some one uses a weapon, any weapon, gun, knife, pick, ax, saw, car, etc. they get prosecuted, when convicted, they are sentenced not all the people of the country.

    Abuse by some people has been going on since creation and will continue till the end of time. We must control and punish the abusers, not the whole society.

    Case and point is the punishment society is taking today due to terrorism. Since governments are helpless to fight and control terrorism they punish the masses in the name of safety and cause extreme economic hardship and the loss of our constitutional liberties.

    There are Nations that under their Laws citizens are permitted to posses firearms. Check out some of those countries. Crime rate has not increased. Abuses happen, the abusers are punished and not the rest of society.

    It is a known historical fact that the Criminal will always find a way to get a weapon.

    Restricting the average citizen from having a weapon to protect himself and his family, leaves the door open to the criminal to violate those citizens, due to the knowledge that the average citizen has no weapon and cannot protect himself and his family.

    A weapon is a tool like any other tool and should be used properly.

    A knife, pick, ax, saw, car, etc. is also a tool that must be used properly. It is not outlawed, is it?

    A car in today’s society is an absolute must. Do the citizens of this country know how many people are killed and injured by automobiles every year, it amounts to thousands, which is much less than with guns.

    And to those who would say this was but a “temporary violation” for the greater good, Ben Franklin admonishes;

    “THOSE WHO WOULD GIVE UP LIBERTIES TO OBTAIN FREEDOM DESERVE NEITHER.

    Folks, we live in dangerous times, a government that does not trust its citizens to bear arms, is a government not to be trusted by its citizens.

    As the threat to all of our liberties continue basically unabated, remember the words of the great political philosopher Edmund Burke; “The only way for evil men to prosper is for good men to do nothing.”

    The right to keep and bear arms should be of great importance to all Americans, if we are to remain a free country we MUST NOT let this right be taken from us
    Remember, freedom isn’t free. God Bless you, and God, please bless the United States of America.

    By: YJ Draiman, Northridge, CA

    PS
    The Supreme Court ruled on the Heller case at the end of its term in June, 2008. The Court, which found for Heller in a close 5-4 decision, wrote that the 2nd Amendment did, in fact, protect an individual right. While the court was careful to note that the case did not call into question any laws that regulate guns, it did state, unequivocally, that Heller and his fellow petitioners had a right to own guns in their home. The Court also ruled that while reasonable regulation may be permitted, the requirement that guns be locked and disassembled was not reasonable.

    Supreme Court affirms fundamental right to bear arms
    Tuesday, June 29, 2010;
    MCDONALD v. CHICAGO Syllabus
    The Fourteenth Amendment incorporates the Second Amendment right, recognized in Heller, to keep and bear arms for the purpose of self defense. Pp. 5–9, 11–19, 19–33.
    The Second Amendment provides Americans a fundamental right to bear arms that cannot be violated by state and local governments, the Supreme Court ruled Monday in a long-sought victory for gun rights advocates.
    The 5 to 4 decision does not strike down any gun-control laws, nor does it elaborate on what kind of laws would offend the Constitution. One justice predicted that an “avalanche” of lawsuits would be filed across the country asking federal judges to define the boundaries of gun ownership and government regulation.
    But Justice Samuel A. Alito Jr., who wrote the opinion for the court’s dominant conservatives, said: “It is clear that the Framers . . . counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.”
    The decision extended the court’s 2008 ruling in District of Columbia v. Heller that “the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.” That decision applied only to federal laws and federal enclaves such as Washington; it was the first time the court had said there was an individual right to gun ownership rather than one related to military service.