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

February 28, 2010

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.)



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11 Comments leave one →
  1. March 2, 2010 11:45 am

    I think Professor Reynolds is pushing the envelope here. Being that the right to self-defense is a natural right (not granted), any state which restricts gun ownership violates this right. And according to our declaration, isn’t it the federal government’s duty to protect these rights?

    • jenn1964 permalink*
      March 2, 2010 12:27 pm

      And this is where we run into problems again. What the Declaration says is –

      That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

      So if the people of Illinois keep electing people who believe that gun control is the best way to effect safety and happiness, then under the 10th amendment the state should be free to implement gun control. Gun control as severe as it wants as long as it has the consent of the governed. As long as they continue to be reelected then that would be an indication of consent.

  2. March 2, 2010 6:48 pm

    That to secure these [inalienable] rights, Governments are instituted among Men, deriving their just powers from the consent of the governed …

    This clearly states that governments are instituted to secure inalienable rights, and that they derive their power to do so from the consent of the people (who of course all (each and every one) have inalienable rights).

    Rights are either inalienable or they’re not. There is no in between. So if the people of Illinois insist on positive rather than inalienable rights, it is their right to institute a new government (hence, secede).

  3. jenn1964 permalink*
    March 2, 2010 7:10 pm

    I’m sorry but your interpretation is just wrong. You are pulling one sentence out of context and hanging your entire argument on it. Under your interpretation no just government can ever be formed because as soon as one person disagrees with it then the government is unjust. Read the wording it refers to the people not the individual and all of the grievances that the Declaration addresses are grievances against the population not individuals.

    • March 2, 2010 10:19 pm

      The people ARE individuals. Groups are just an abstract.

      One thing you can be certain of in our founding documents, is that they were based strictly on natural law. People can and will disagree endlessly about things of course, but where our original form of government draws the line is with inalienable rights. Legitimate governments exist to protect inalienable rights.

      “That to secure these [certain inalienable] rights, Governments are instituted among Men.” Where do they get their powers? “From the consent of the governed.” When the government “becomes destructive of these ends” (fails to protect these certain inalienable rights), “it is the Right of the People to alter or to abolish it, and to institute new Government.”

      So if Illinois insists on violating the people’s inalienable right to defend themselves (even if by mob (majority) rule), then the government which was instituted to protect [these rights] must do so.

      Inalienable rights are absolute. Man cannot rightfully take away that which was given by God or nature (whichever you prefer).

      • jenn1964 permalink*
        March 3, 2010 9:03 am

        See today’s post on inalienable rights.

  4. March 3, 2010 7:05 am

    What CL said.

    That said, I don’t think a State could outlaw Gun ownership because it’s a fundamental right. The 10th Amendment says “reserved to the States…or to the People”. People forget about the “or to the People part” and if the right is deemed fundamental, which it is, then I don’t think any State could prohibit firearm ownership.

    I have spoken.

  5. January 4, 2011 6:59 am

    send pictuer sexy


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