The Chicago Gun Ban Ruling And The Concept Of Federalism

From Campaign For Liberty:

That Chicago Gun Ban Ruling


By Gary Howard

View all 3 articles by Gary Howard

Published 07/02/10



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Not So Fast: Maybe SCOTUS' Chicago Gun Ban Ruling Shouldn't Be Celebrated

This week the Supreme Court of the United States, or SCOTUS, ruled to overturn gun restrictions imposed by the Chicago city government on its citizens. No matter how wrong or misguided you may believe the city of Chicago's gun laws are, the Court's ruling—and the way they came about it is nothing to be pleased about.





The Court's ruling, that the Second Amendment extends to all 50 states, seems like common sense to those of us who see the right to bear arms as a constitutionally-protected right. But I guess the Court needed to spell it out for some lawmakers. There is a problem with this ruling however, and the problem is twofold: 1) how the Court used the 14th Amendment to reach its ruling--which is how many bad Supreme Court decisions have been reached—should make anyone claiming fidelity to the purpose of the Constitution suspicious; 2) celebrating this ruling harms the credibility of those who claim to be in favor of state and local sovereignty.





The 2nd Amendment establishes the right to bear arms as a right that cannot be abridged by the federal government. Read the previous sentence again. Now ask yourself: What was the purpose of the Constitution, and subsequently the Bill of Rights?





The Constitution established the federal government and its powers; the Bill of Rights limited those powers and asserted the rights of individuals and states. Ultimately, the Constitution is in place to protect the individual from infringements imposed by the federal government, not the states. At least that's how things used to be—until the 14th Amendment.





The 14th Amendment brought about the incorporation doctrine, essentially applying the Bill of Rights to the states in the same way they had been applied to the federal government. There is ample debate about whether that is a good or bad thing, which usually depends on if one is for or against a particular issue —which is somewhat of a hypocritical position.





States created their own separate constitutions because they are sovereign entities (an existence having been tentative for some time now). Some of those state constitutions have even stricter limits on government than the U.S. Constitution. It is the right of the states, and localities, to make their own regulations and restrictions regarding any issue. As an example, take the sale of alcohol into consideration. Despite the federal repeal of prohibition in the 1930s, some localities are still ‘dry' counties to this day, restricting the sale of alcohol inside of their boundaries. They are within their rights to do so.





As it relates to handgun restrictions, my view as a citizen who believes in gun rights is that gun bans are no good. But as a Constitutional question, from the view of someone who believes in strict limits on federal power, localities are within their rights to place regulations as they see fit on handgun ownership.





Originally, like Justice Thomas, I thought the decision was right, but the use of 14th Amendment as reasoning was suspect to say the least. After some thought, I am leaning even further toward being against this ruling on grounds that it further expands federal power. And if I want to remain consistent about limiting federal power, I must oppose such a ruling.





To assert that the gun ban can be declared void by federal fiat, simply makes the problem of federal overreach even worse. What happens when that same federal judicial power is used to declare something you are in favor of as void?









UPDATE:



In response to the disagreements with my assessment of the Court's ruling in the comments section, I have a couple of points to make. If the broad application of the 14th Amendment is taken away, specifically with this ruling--but generally in any case where such broad application has taken place--let me remind folks that:



1) No -- a state cannot just do anything it wants--all US states have constitutions that are closely modeled after the US Constitution in the restrictions placed on government and the rights of citizens--and if the citizens of those states are actively engaged (as they should be) and ensure that lawmakers pass legislation that most closely reflect their views.



2) If a state's laws are objectionable to you, you can either fight against those laws by lobbying for change, or electing lawmakers you find acceptable--as mentioned above.



3) Another option is to move to a state where you find the regulatory environment acceptable. Either way, it's your choice, and that's how the system is supposed to work. We already see examples of this every day, when people and companies move to other states when they have had enough of the way a state or locality restricts them in their daily lives or business dealings. The mass exodus of New Yorkers to Florida or Californians to Nevada, in order to avoid high taxes, comes to mind.





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