Clint Eastwood and Denise Milani discuss the 10th Amendment and Gun Rights
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?
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.
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. 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.
(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.)