by jshuberg on Sat Nov 29, 2014 3:47 am
Kind of.....
Heller found that the 2nd Amendment was an individual right, and that it was *always* an individual right, predating the constitution itself. The right didn't come into being when the bill of rights was ratified, it was merely recognized. At the time the bill of rights was ratified by the states, every one of the states already recognized the right. Back then, the Federal Government derived it's power from the states, and bill of rights itself was a demand made by the states as a condition of ratifying the constitution. To put it simply, the antifederalists were worried that the Federal Government might not recognize the rights of the people. When the 2nd Amendment was being drafted, it's original text was from taken from law already established in many of the states, although with slightly different wordings. There was no dissent from any state on the existence of the right, and the debates regarding the 2nd Amendment was primarily in finding the simplest, most distilled wording of the existing states forms. From a historical perspective, the original 13 states recognition of the right to keep and bear arms isn't in question, and predated the formation of the United States itself.
Prior to 1833 it *was* accepted that the bill of rights applied to the states, since it was the states after all ratified the bill of rights. It's purpose was in fact to ensure that the Federal Government recognize the same rights that the states did. However, in 1833 Barron v. Baltimore changed this. While it dealt specifically with the 5th Amendments takings clause, it was very wrapped up in pre-civil war politics. Southern states feared that the bill of rights could be used as a vehicle to force them to free their slaves and to give those former slaves all of the rights and protections it contained. Barron v. Baltimore found that the bill of rights applied only to the Federal Government, which effectively shut down abolitionists plans to use it as a means to free the slaves. Note that abolitionist states basically ignored this ruling (think state nullification, which was a technique used by many states concerning laws about slavery). It was primarily the southern states that championed this ruling as a way to avoid being forced to free the slaves.
Fast forward to 1868, during post-civil war reconstruction the 14th Amendment was passed. It contained a Due Process clause that was identical to the Due Process clause in the 5th Amendment, although it specifically applied to the states (while the 5th applied only the the Federal Government after the 1833 ruling). The Due Process clause of the 14th Amendment is the mechanism by which the bill of rights has been slowly re-applied to the states via incorporation. The McDonald ruling used this mechanism of incorporation to determine that in fact the 2nd Amendment did apply to the states. And much like the Heller ruling, the determination in McDonald was that the 2nd Amendment *was* incorporated to the states, as opposed to *is* incorporated to the states. Meaning it always had been, it was just that it had previously been unrecognized. So basically, the 2nd Amendment *did* apply to the states, at least as of 1868 when the 14th Amendment was ratified, it just wasn't recognized by the courts yet. This makes sense, as one of the purposes of the 14th Amendment was to "undo" the Barron v. Baltimore Supreme Court ruling.
So basically there were some states that recognized the right to keep and bear arms explicitly, separate from the 2nd Amendment. Then all states had the 2nd Amendment incorporated to it in 1868, although the court didn't recognize this until 2010. However, had the 1833 decision (that was wrapped up in pre-civil war politics) not occurred, the 14th Amendment would never have been necessary as it was accepted that the bill of rights *did* apply to the states prior to that ruling. Many legal scholars believe that this ruling was in error, because it was not only influenced by the pre-war politics of the time, but also because incorporation has effectively circumvented it's effect on most of the bill of rights. Most importantly it went against the understanding and tradition that the bill of rights was borne from the states, and so applied to the states.
So it's not quite as clear cut as some people try to make it sound. The original 13 states recognized certain rights, and then forced the Federal Government to also recognize them. It was generally understood that it went the other way too, that the states (including new states) must also recognize the rights in the bill of rights. Then a Supreme Court ruling reversed this. Then a war was fought. Then another Amendment was passed that circumvented the Supreme Court ruling. And then slowly the bill of rights has been legally re-applied to the states again using this mechanism. The bill of rights, and to which governments it applies was the victim of a chess game played on the board of the politics of slavery.
However, if you want to get back to the beginning, to the original intent, the purpose of the bill of rights and the 2nd Amendment was to force the federal government to recognize the rights that the states recognized as a means to prevent tyranny. Had the founding fathers anticipated the chess game that would drastically alter the recognition of our fundamental human rights, they would have most certainly made their intent more explicit. Had we never been a slave owning country, none of this mess would have happened, and the disposition of the 2nd Amendment and the entire bill of rights would be much better understood.
Damn slavery....
So anyways, my insomnia is over now, and I'm going to crash out now. Goodnight.
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