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States’ Rights vs. Individual Rights, the 2nd and 14th vs. the 10th

          McDonald v. Chicago is the perfect litmus test for determining if someone is really pro-liberty, or merely anti-government.  It said that the Second Amendment applies to state and local governments.  H.R. 822, the National Right-to-Carry Reciprocity Act of 2011, is another opportunity to identify who is really pro-liberty, and who is merely anti-government.  Just as there are many from the smaller government side of the political spectrum who claim to support the Second Amendment, but think McDonald was wrongly decided, there are many from the smaller government side of the political spectrum who are vociferously opposing H.R. 822.  Such people are favoring states’ rights over individual rights, which is about as statist as it gets.

            While the bill is flawed in that it does not go far enough, it is clearly constitutional.  The very text of the 10th Amendment shows it is constitutional, if you believe that the right to carry is “rooted in the tradition and conscience of our people” (Justice Scalia during McDonald oral arguments, pg 11 of transcript):


The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”


            Substantive due process prohibits constructive carry bans by the states, if you agree with Scalia’s “conscience of our people” question.  States simply do not have the right to do it, therefore any federal law that helps to erode such state laws is very constitutional.



          H.R. 822 is mainly aimed at travelers, and is not intended to protect the actual residents of states that are guilty of anti-gun majoritarianism.  Specifically, it would not allow Marylanders to carry in MD, because it only applies to nonresidents.  It would however help permit holders from VA and PA by allowing them to carry while in MD, and Marylanders would enjoy a free-rider benefit from this as criminals would have difficulty telling who was a MD resident and who was not.  It appears to be building on the momentum of two landmark Supreme Court decisions, but doing so at the measured pace of gradualism.  The guts of the bill’s text:


Reciprocity for the carrying of certain concealed firearms


‘‘(a) Notwithstanding any provision of the law of any State or political subdivision thereof (except as provided in subsection (b)), a person who is not prohibited by Federal law from possessing, transporting, shipping, or receiving a firearm, and who is carrying a valid identification document containing a photograph of the person, and a valid license or permit which is issued pursuant to the law of a State and which permits the person to carry a concealed firearm, may possess or carry a concealed handgun (other than a machinegun or destructive device) that has been shipped or transported in interstate or foreign commerce, in any State, other than the State of residence of the person,”



            But there is a US congressman who is a favorite among Ron Paul libertarians who is calling the bill “unconstitutional.”  Justin Amash via his Facebook page has repeatedly called the bill “unconstitutional,” and based on the responses, he appears to be leading a merry band of lemmings who believe him. Some of these comments reflect the fear that it could lead to reciprocity for gay marriage.  Consider for a moment just what a feat that is.  He’s literally talking the guns, God, and gays crowd into siding with the Brady Campaign on this.  Obi Wan has nothing on this guy.

            We also have a Republican primary front-runner who buys into this nonsense.  Herman Cain has said the “gun situation is a states’ decision.”  Of course in Cain’s defense, he may very likely have not understood the conflicting forces at play in the question.

            To briefly explain the settled law on this matter as of June 28, 2010: if the feds can’t do it regarding the Second Amendment, then neither can the states.  Granted Heller and McDonald only addressed keeping and not carrying, but that is where the next battle line is drawn, and those who are pro-liberty must support the fact that carrying falls under priviliges and immunities, as well as substantive due process.  Of course the Looney Tunes crowd who buys into Amash’s argument is also the crowd that argues against the very existence of the 14th Amendment, as well as the entire concept of common law and would probably like to see us reduced to two branches of government, so this is unlikely to be persuasive with them.  This is the crowd who sits at the little table on Thanksgiving.

            Perhaps a basic, natural rights, purpose of government within the context of securing liberty argument would go over better with them.  Since our nation’s inception there has been a Mexican standoff between individual rights, popular sovereignty, and the strength of government:


“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness (individual rights). That to secure these rights, governments are instituted among men (strength of government), deriving their just powers from the consent of the governed (popular sovereignty).”


            150 years ago we fought a war over what was the proper mix of those three ingredients.  Man has a natural right to defend himself, and no government, not the state, local, or federal, can take that right away while being consistent with individual liberty.  In this case, strength of government is used to advance individual rights over popular sovereignty.  To call H.R. 822 unconstitutional is to take a majoritarian view that buys into the same emphasis on popular sovereignty over individual rights that the southern states argued. 

            I often like to ask the question, “which represents the more free society, the one with the central government weak enough that states can allow a man to own another man, or the one with the central government strong enough to stop it?”  The parallel question here is, “which represents the more free society, the one with the central government weak enough that states can prohibit an individual’s right to self defense, or the one with the central government strong enough to stop it?”  Given that many of Amash’s, as well as Ron Paul’s disciples refer to the Civil War as the War of Northern Aggression, and say things along the lines of “Lincoln freed some slaves, while enslaving us all,” I’m not going to hold my breath for turning any hearts or minds.  It is best to simply marginalize these neo-confederates.