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Repost – Clint Eastwood and Denise Milani discuss the 10th Amendment and Gun Rights

June 18, 2010

Denise Milani remains the number 1 driver of traffic to this site, followed by Tera Patrick, this is currently the number 1 post on this site, and we are still waiting for the Supreme Court to decide MacDonald v. Chicago, so I decided to repost this.

This week the Supreme Court will decide whether it’s ruling in the Heller case can be incorporated against the states under the 14th Amendment. Everyone knows that the 2nd Amendment protects and individual right. The question will the court slap leather or just stand there whistling Dixie.

But Clint won’t that raise 10th Amendment concerns?

What? Are you feeling lucky punk? Explain yourself.

Well Clint, as you know prior to the Civil War the 10th Amendment was regarded as a brake on the Federal governments power over the states, and the Bill of Rights was regarded as applying against the Federal Government towards the individual. The states were entitled to enforce prohibitions that the federal government could not. It was the 14th Amendment that extended the protection of the Bill of Rights to the state level. In fact many people believe that the 14th amendment in effect repeals the 10th amendment, but there is a growing movement to reinvigorate the 10th amendment. Under the states rights interpretation of the 10th amendment gun control laws should fall to states and municipalities.

Ehhh? That can’t be right. Get off my lawn you stinking commie.

I’m afraid it is Clint. Professor Glenn Reynolds (aka Instapundit) actually wrote about this issue back in 1995 -

Under a states’ right interpretation, the states themselves would be free to regulate, or even entirely forbid, gun ownership, subject only to general constitutional guarantees, such as due process and equal protection.[44] But this result would not be (p.1753)achieved without cost: Federal power to restrict firearms ownership necessarily would be concomitantly limited.

Reynolds and his co-author posited that under such and interpretation anything not specifically prohibited under state law would be legal for ownership, however a blanket prohibition is a blanket prohibition so that is a somewhat moot point.

It seems to be a second amendment conundrum.

(editorial note: As a second amendment supporter I wish to see Heller incorporated against the states. I know that many 10th amendment activists believe that strict interpretation of the 10th amendment would lead to stronger protections for gun owners. That may be true in some many states, but in states like NY and California I think the record shows that would most likely not be the case. Denise’s argument is also essentially the reasoning used by the 7th Circuit to deny incorporation of the 2nd Amendment in MacDonald v. Chicago.)

(h/t)

8 Comments leave one →
  1. June 18, 2010 4:18 pm

    the states themselves would be free to regulate, or even entirely forbid, gun ownership, subject only to general constitutional guarantees, such as due process and equal protection.[44]

    How can we apply a 14th amendment protection to due process and equal protection-that is, amendment recognized rights- and not to another amendment recognized right, RKBA?

    INAL, but if you incorporate some specific amendment recognized rights, don’t you recognize all? The 14th didn’t say SOME stuff was incorporated.

    My point being, Reynolds mentions “general constitutional guarantees” and lists due process and equal protection. Those are no more general than RKBA.

  2. June 18, 2010 4:25 pm

    On a completely different topic, why is the Secretary of State, while overseas, commenting on what the Department of Justice will or will not do in terms of Arizona law?

    • jenn1964 permalink*
      June 18, 2010 4:32 pm

      I agree with you about the 14th Amendment, what is being discussed is the outgrowth of the states rights arguments that tenthers put forward.

      I have no idea what Clinton is up to.

  3. June 18, 2010 5:26 pm

    What I’m saying is that you can still espouse the 10th and not fall prey to the argument that suddenly the states and municipalities can ban guns.

    Look, the 2nd clearly says the RKBA will not be infringed. Whereas in the case of the separation of church and state, the 1st says “Congress” shall make no law- that would seem to leave it an issue for the individual states. In other words, where incorporation is implied by the language of the amendment, ie, the 2nd, we see courts resisting incorporation, but where wiggle room is left to the states, as in the 1st, courts have been aggressive in incorporation.

  4. jenn1964 permalink*
    June 18, 2010 6:50 pm

    You would have to take that up with the courts, all I know is that the prevailing legal opinion is that under the states rights interpretation the states could regulate guns. I don’t pretend to understand how lawyers can look at plain language and twist it to mean something else.

  5. June 19, 2010 3:26 am

    That was really fabulous, educating on matters that bring awareness is quite laudable, thank you very much

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