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@Michael Boldin I apologize to Rob if I misunderstood his argument. I am constantly debating the true meaning of the Second Amendment (and BOR) with my Conservative, Gun-owning friends. It's a hard sell!
1 year, 9 months ago on The Founders and the 2nd Amendment
I am a firm believer in the right to keep and bear arms, however, I respectfully disagree with Mr. Natelson.
The Second Amendment is part of the first ten Amendments, also known as the Bill of Rights. These amendments were a check on the "Federal Government" and not the States. These Amendments were introduced to calm the fears of many of the States that the new Constitution would trample on "States Rights". Madison promised to introduce these Amendments during the first Congress under the new Constitution and he did. Remember that the States created the Federal government and they all had Constitutions protecting their citizens liberties.
The preamble to the Bill of Rights reads: "The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, IN ORDER TO PREVENT MISCONSTRUCTION OR ABUSE OF ITS POWERS (the Federal government), that further declaratory and restrictive clauses should be added". Many States at the time of the ratifying and after had restrictions on firearms. One of the first cases in a State concerning firearms, Bliss v. Commonweath (1822, Ky). showed that the Kentucky Constitution protected the right to keep and bear arms and the State legislature could not enact prohibitive carry statutes. There was no need to look to the Federal Second Amendment because it had no bearing on the case. William Rawle a United States District Attorney wrote in his View of the Constitution, 1829 2nd ed:: " No clause in the Constitution could by any rule of construction be conceived to give to Congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a State legislature". The next line he seemed to contradict himself by writing that if the States tried to ban weapons the Second Amendment may be appealed to as a restraint. This most likely would not have been upheld knowing how protective the States were of their own Constitutions.
However, if any further proof that the Second Amendment was prohibitive on the Federal Government and not the States, one should look no further than John Marshall's decision in Barron v. Baltimore. In it he writes: "But it is universally understood, it is a part of the history of the day, that the great revolution which established the Constitution of the United States was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen who then watched over the interests of our country deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the General Government -- not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress and adopted by the States. These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them".
It is a very serious matter if we "incorporate" the Bill of Rights to restrictions on the States. This is not what the Founders envisioned. If your State does not have a Constitutional protection to keep and bear arms then it is up to the people of that State to correct it. This is what [r]epublicanism is all about. You may not like your States laws (I don't) but it is your responsibility to make it right.
It is a different story when the likes of Feinstein and Schumer try to ban firearms. That is where the Second Amendment comes into play. They can't touch our firearms, period.
It is important to understand the true intent of our Constitution because if we don't, we are doomed to live under others interpretations.