Saturday, March 6, 2010

RE: Gunning Down the Constitution—Kevin Gutzman Defends

Posted by Jack Hunter on Sat, Mar 6, 2010 at 2:18 PM

My latest commentary "Gunning Down the Constitution" has caused quite a stir amongst some conservatives, libertarians and gun rights advocates (I too, belong to all three categories). My argument is not that gun control is good (I believe it's hardly ever good, see here)—only that invoking the 2nd Amendment via the imaginary "incorporation doctrine" that federal courts have magically found in the 14th Amendment whenever it suits their fancy, only empowers the federal government further.

Kevin R. C. Gutzman is an American historian, Constitutional scholar, and New York Times bestselling author of three books, Who Killed the Constitution? The Politically Incorrect Guide to the Constitution (co-authored with Tom Woods) and Virginia's American Revolution: from Dominion to Republic, 1776-1840. An associate professor of history at Western Connecticut State University, Gutzman holds a bachelor's degree, a master of public affairs degree, and a law degree from the University of Texas at Austin, as well as an MA and a PhD in American history from the University of Virginia. (Source: KevinGutzman.com)

I would add, Kevin is also a pretty cool guy.

So cool, in fact, that he was nice enough to defend my latest piece at length. The following is a repost from The American Conservative's comments section. I have included a critic asking good questions about my concept of the nature of the Constitution, followed by Gutzman's reply:

Bo Grimes, on March 5th, 2010 at 6:40 pm Said:
“The Bill of Rights was never intended to be a list of individual rights, but a list of things the federal government could not do to the states.”

So my state can establish a religion? Prohibit my free exercise of religion? Quarter troops in my house? Force me to testify against myself? Try me as many times as it takes to convict me? Subject me to cruel and unusual punishment? Control the press located within its borders?

I believe states should be a balance against the federal government, but I don’t think Mr. Henry would have argued that the Bill of Rights did not apply to the states as well as what has become the State.

Kevin R. C. Gutzman, on March 6th, 2010 at 8:57 am Said:
Mr. Grimes,

Yes, as originally understood, the Bill of Rights left it to each state to maintain its established religion. My own state of Connecticut, for example, kept the Puritan church that was the reason for Connecticut’s very existence until 1819, and no one ever thought that this violated the Establishment Clause. Why? Because it didn’t violate the Establishment Clause. The reason for the Establishment Clause was to keep Congress from doing anything “respecting an establishment of religion” — either establishing a national church or disestablishing a state church — as even John Marshall had to concede. (_Barron v. Baltimore_, 1833)

The Preamble to the Bill of Rights says, in part, “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, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution….”

The “its” refers to the Constitution’s powers, and “the Government” refers to the Federal Government. In other words, the purpose of the federal Bill of Rights is to clarify the limits of Federal Government power. Its purpose is *not* to limit the state governments’ powers IN ANY WAY.

Rep. James Madison proposed an amendment in the First Congress that would have given federal judges veto power over state laws related to speech, press, and religion. That was the only one of his amendment proposals that Congress did not adopt. Why? Because the purpose of the Bill of Rights was to limit the Federal Government’s powers, not to give it additional power vis-a-vis the states.

The Incorporation Doctrine is a bogus left-wing invention that has been used for almost uniformly pernicious purposes since it saw the light of day 7 decades ago. Under the Incorporation Doctrine (the idea that federal courts can use twisted readings of their favorite Bill of Rights provisions against the states), federal courts have made flag burning a right, banned capital punishment in general, banned capital punishment of child rapists, banned school prayer, excluded certain evidence against criminal defendants, banned Nativity Scenes from public places, et cetera. And now you want them to apply this same unconstitutional doctrine to a new area of law.

Gun ownership will never be unregulated. Retarded people, insane people, blind people, felons, children, and various others will not be allowed to possess weapons. People who are allowed to possess weapons will never be allowed to take them anywhere they want anytime they want. The issue is who decides what the regulations will be.

Since the founding of Virginia in 1607, state authorities have had control over such questions. But you want them to be decided by unelected, unaccountable federal judges — the same ones who ban school prayer and Nativity Scenes and capital punishment of child rapists and so on. The model of government you are advocating is un-American.

But I predict that you are going to get your way. Federal Courts rarely refuse to take states’ power for themselves.

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