Pity poor John Barron. The Baltimore businessman found his business -- a wharf where ships docked -- ruined when the city's public works improvements resulted in the depositing of sand, gravel, and dirt off of the wharf and into the bay. The city refused to compensate Barron for his loss, so he sued, arguing that the Bill of Rights' Fifth Amendment, which says that private property was not to be taken "for public use without just compensation" should yield compensation for him. On its face, Barron's claim was just; nevertheless, the Supreme Court concluded in 1833 that Barron was out of luck because the Bill of Rights applied only to the national government, not the states.
Jump ahead to 1897 when the high court reversed course, ruling that the states must now abide by the just compensation protection. Why the change? The short answer is the addition of the Fourteenth Amendment to the Constitution in 1868, which said in part that states may not deprive persons of "life, liberty, or property, without due process of law." This wording eventually became the means by which the courts began to apply or "incorporate" parts of the Bill of Rights to the states, including free speech, free press, free exercise of religion, and most of the rest of the first eight amendments. By the time the court incorporated the Fifth Amendment's protection against double jeopardy in 1969, the consensus was that incorporation was probably at an end. As the piecemeal incorporation process suggested, not all Bill of Rights protections were equally important. No one was beating down the doors of judicial chambers to incorporate the Third Amendment's protection against the quartering of troops in people's homes in peacetime, or the Seventh Amendment's right to common law suits "where the value in controversy shall exceed twenty dollars," or, for that matter, the Second Amendment's militia-based right to keep and bear arms -- a right rendered obsolete with the decline of old-style militia system.
But the calculus changed for the Second Amendment in 2008, when the Supreme Court, for the first time in history, ruled that the amendment protected an individual right of civilians to own handguns for the purpose of personal self-protection in the home. The court's D.C. v. Heller decision was notable not only for rejecting its own past precedents, but for creating a new right built on what most historians considered a suspect reading of the amendment's history. Having carved out this new right, how could the five member majority in Heller not see the process through to incorporation? As Justice Anthony Kennedy noted twice during oral argument in McDonald v. Chicago, if the right to bear arms was an individual right (that is, unconnected to militia service), it must be fundamental -- that is, worthy of incorporation -- and "if it's not fundamental, then Heller is wrong."
When the court incorporated just compensation, free speech, and other civil liberties, it meant that states had to conform to a higher definition of these personal freedoms. Yes, it would mean protecting speech some found odious; countenancing unorthodox religious beliefs alien to a nation dominated by Judeo-Christian traditions; protecting the publication of xenophobic or racist utterances; occasionally releasing from prison suspects who seemed obviously guilty because of improper searches and seizures; and providing lawyers to people who couldn't afford to pay for them.
McDonald, though, does something else. It applies to persons, all right, but it does not enshrine a right to personal self-defense (that right has existed as bedrock law for centuries). Instead, it's a right (admittedly limited) to civilian gun ownership, which means, quite simply, a right to civilian-controlled deadly force. In a nation where ever-fewer citizens have guns, where crime has steadily declined across two decades, where police are more respected and efficient than ever, where the most frequent fatal use of guns is suicide, where violence against the government is increasingly seen by some as noble, and where we teach our children that it's better to talk over differences than fight about them, this court's McDonald is an anomaly.
Spitzer's books include Saving the Constitution From Lawyers, The Politics of Gun Control, and Gun Control.
Not true, gun ownership has been going up steadily, as have the numbers of guns in private hands. And yet the crime rates go down...
Where is evidence of the "blood in the streets" mantra the anti-gun 'movement' constantly chants...?
the view from his Ivory Tower,the Police are trusted friends and fellow citizens are unworthy adversaries unable to judge when their own safety is in imminent danger.Streets turn into the wild west again and unlawful deployment of deadly force by citizens will become rampant.The facts just do not prove this to be the case.
Disingenuous again to say the most frequent fatal use of guns is suicide. Suicide rates don't go down in places where guns are outlawed, and far more numerous than any wrongful use of guns (even if you want to include suicides and gang-bangers or police removing hardened criminals from the pool), is the legitimate defensive use of guns by civilians. In over 90% of them, no shot is fired, and US DOJ numbers show that civilians who use guns in defense are less than 20% as likely as police to use them wrongly or cause undue harm.
Above all, what I never see in writings which are dubious about the civilian ownership of arms; What about the government itself establishing in courts that the police have no legal responsibility to come to our aid when attacked by criminals or madmen, and we have no recourse or appeal when we come to harm because (in the words of the court in one such case) "the best that can be said of the police is that they stood by and did nothing."
DeShaney v. Winnebago County, Gonzales v. Castle Rock, Warren v. District of Columbia, many more such cases.
What about the police being universally respected and efficient? Never mind the phenomena of "contagious shooting", and no-knock raids resulting in deaths of innocents and rarely or never any change from the policies that make this sort of thing possible, never any adequate recompense for the damage the police do.
Never mind the police being another arm of the government monopoly on the use of force, and conducting unconstitutional door-to-door searches and seizures of property alongside the Army, never mind the government hanging onto and building up it's ability to spy and search without warrant, and sweep any of us up at any time without due process or habeus corpus, take us anywhere around the world and torture us and hold us indefinitely, when we haven't done any crimes.
Never mind our own government being the worst abuser of brute force around the globe, while we'd like to teach our children that it's better to talk over our differences than fight.
http://www.thearmedcitizen.com/
Spitzer also neglects to mention the drop in crime over the last two decades has been accompanied with a mass legalization of lawful concealed carry. In the mid 80's only a few states had lawful CCW. Now 48 states do.
Lawful gun ownership and use has been a constant companion of our crime reduction. The McDonald verdict goes along with that very nicely.
Re the four cities that have the strictest gun control, i.e. Detroit, Chicago, DC and NY city, they 'own' about 20 per cent of all homicides committed in this country. However, I am afraid it is going to take another round of lawsuits before the good people of those cities can truly protect themselves and get their homicide rates under control.
In, "The View of the Constitution" written in 1825, he writes:
"In the 2nd Amendment, it is declared....that the right of the people to keep and bear arms shall not be infringed. The prohibition is general. No clause in the Constitution could, by any rule of construction, be conceived to give the Congress a power to disarm the people. A flagrantly wicked attempt could only be made under some general pretense by a STATE LEGISLATURE. But if, in any blind pursuit of inordinate power, either the STATE or federal government should attempt it, this Amendment may be appealed to as a restraint on both".
I believe the SC in 1833 ruled incorrectly, and according to Rawle, who was with the Founders, knew exactly that the Bill of Rights applied to all citizens who live in the states...
Actually it had nothing to do with importance. The court decided to incorporate only as cases before them. When has anyone had standing to challenge the 3rd Amendment due to state infringement? NEVER.
As for the Second, it is not militia based. The right to arms has never been based on militia service.
and when did the supreme court say that an american cannot defend their life with a gun....
Damn right! That's what our Founders intended.
I believe you mean Article I, Section 8, Paragraphs 15-16. There is no Section 40 in Article I.
So, does that mean all able men and women today should be doing the same? We aren't in a feudal system but the concept is pretty clear to me.
Nope, it is the civilian force made up with people with hand guns that can take out tanks, helicopters, fighter planes and all the other ordinance that modern militaries have.
Semper fi
The "militia" at the time of writing was "every able-bodied man". We'd probably now regard that as "every able-bodied CITIZEN" to be inclusive of females.
I know a lot of people are afraid of guns or hate guns, and hate & fear their fellow citizens who own guns, but you can't apply a "special" interpretation of the 2nd Amendment without opening that can of worms on all of them.
The Supreme Court did agree that certain restrictions and requirements can still stand as Constitutional (like shouting "fire" in a theatre TECHNICALLY limits free speech, but is accepted as a reasonable restriction) so I'm sure some fine-tuning will be had. Requiring training is a good one, that I (as a gun owner) would see as an improvement regardless.