""It is clear that the Framers . . . counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty," Justice Samuel A. Alito Jr. wrote for the conservatives on the court."


The above is from a Monday story about the Supreme Court decision affirming that the Second Amendment applies to the states, and gives individual Americans the "right to bear arms". There should never have been any question that the Second Amendment was meant to LIMIT the Federal Government power to legislate on guns, since there is no other reason for the Second Amendment to exist. Only dishonest hypocrites on the left do not understand--or pretend not to understand--the latter point.


Justice Alito is obviously right, even if his statement is misleading (for reasons stated below). The "Framers" had to have considered the right to bear arms as a fundamental right that needed to be protected. There are only 8 substantive Amendments in the Bill of Rights--where the 9th and 10th Amendments were unsuccessful attempts to make sure that people understood that the Federal Government was a government of limited powers, and that listing of some specific rights did NOT mean that the Federal Government had the power to do everything else. The Second Amendment was important enough to the Framers to be put SECOND among the 8 fundamental Amendments that were required before the states would ratify the original Constitution. You have to be a brain dead leftist not to understand that the Framers regarded the right to bear arms as fundamental. How can you get more "fundamental" than being one of the 8 most important principles to protect from government interference in the Constitution?


Bit where is this misleading? It is misleading because the Bill of Rights was almost entirely a STATES' RIGHTS document. It was meant to protect people from an all-powerful FEDERAL government that people feared might evolve from the Federal government of limited powers that was supposedly being created--feared correctly. If the Federal Government truly was to have only the powers granted to it in the Constitution, there was no need for the Bill of Rights. The Federal Government supposedly did not have the right to interfere with those rights anyway, and listing SOME rights would imply that the Federal Government had unlimited powers in other areas. Hence the 9th and 10th Amendments,--to avoid that conclusion--which have been dismissed as "truisms". Unfortunately, the 9th and 10tth Amendments have turned out to be neither true nor effective, as the Federal Government has pretty much turned into a government of unlimited power (except for specific prohibitions in the Constitution). If the Federal Government can require mandatory health insurance, it is a government of unlimited power. It is true that many of us don't accept that, but our view has been pretty much ignored since FDR.


Thus, as I said in my comments on my own article over the weekend--anticipating this Supreme Court opinion and argument, in my usual foresight--in 1800 New York could both establish a STATE CHURCH and BAN GUNS without violating either the First Amendment or the Second Amendment. That was because those Amendments, and almost all of the Bill of Rights, DID NOT APPLY TO THE STATES. The Bill of Rights was truly a states' rights document intended to protect people, and states, only from the FEDERAL GOVERNMENT. Sure, states had similar protections in their constitutions and laws, but they were not the business of the Supreme Court. They were the business of the people in the individual states, and of the state courts. One of the things we have lost is the FREEDOM of each individual state, and the people of that state, to determine how to INTERPRET what is meant by the "right" to free speech, religious freedom, and the right to bear arms. Why should the Supreme Court, and its nine members, be able to impose its view of these rights uniformly on the STATES, and the people in those states? The idea was that the Federal Government should not be able to impose restrictions on those rights on us ALL, but that we would retain the freedom to determine how those rights applied in each individual state. What happened?


Slavery happened (not black people, but the evil of slavery). Or, rather, it had already happened. That ultimately led to the Civil War. The Civil War, in turn, led to the vague 14th Amendment--which even its authors did not have any idea of what the vague words meant. The people who passed the 14th Amendment would have been horrified to know that they were PROHIBITING PRAYER IN PUBLIC SCHOOLS (about a 100 years later).


Nope. The 14th Amendment says nothing abut applying the Bill of Rights to the states. The First Amendment, after all, says: "CONGRESS shall make no law....." Clear that it does not apply to the states, right? The 14th Amendment does not change that. But what does the 14th Amendment mean by 'privileges and immunities"? Really, no one knows. For 70 years, the 14th Amendment had little effect on appplying the Bill of Rights to the states, although a major effect on conservative activism and "substantive due process" (see P.P.S.). Indeed, the Supreme Court concentrated on the part of the Constitution that DOES apply to the states--talking about no impairment of contracts--and on protecting the rights of BUSINESSES using the "due process" clause. If they were as clever as leftists would eventually become, they probably would have made more use of the 14th Amendment, but that was so clearly related to racial type discrimination, and so vague, that "conservative" justices did not really make much of a point of the 14th Amendment. Enter the FDR court.


For the FDR court, the vague 14th Amendment was perfect for a Supreme Court POWER GRAB: for Supreme Court justices to frame themselves as the protector of the people's rights, just like FDR himself. Even the "conservatives" on the FDR court, like Justice Harlan, were fairly open to this power grab, if not quite as open as the leftists. After all, don't Supreme Court justices regard themselves as superior to most people--especially state court judges--in every way? Why should the Bill of Rights only restrict the FEDERAL GOVERNMENT? Did not people have the "right" to have superior Supreme Court judges protect them FROM THE STATES as well as the Federal Government? The 14th Amendment was there, waiting, as a perfect, vague vehicle for this FEDERAL poer grab. yes, the Supreme Court is part of the FEDERAL government. This is the ultimate irony: that a document--the Bill of Rights--meant to restrain FEDERAL power became a vehicle of Federal power, through the 14th Amendment. This did not eve begin to happen until about 1940, and would not prohibit prayer in local public schools until after 1960.


What did the FDR Supreme Court do? It did an indefensible, nutty thing, but a thing which has now represented the law of the land for some 70 years. It said that the 14th Amendment was meant to protect people from all "state action", as to those "rights" which this country has determined to be fundamental. The right to be free to decide--state by state---whether to have prayer in the schools and how to interpret the right to free speech on a state level were obviously not rights the FDR court regarded as "fundamental". But what were thos fundamental rights supposedly meant to be protected by the 14th Amendment? Ah, there was the Bill of Rights. That must be it, right? Even though the First Amendment refers to CONGRESS and the Second Amendment seems to contemplate state regulation. Thus, the FDR court was not quite as arrogant as Obama--not quite as arrogant as to say that "fundamental" rights are what WE determine them to be, in our infinite wisdom.


Problem solved, right? The 14th Amendment, despite logical absurdities, applies the Bill of Rights to the states. Wrong, bison breath (Johny Carson, "Karnak" reference). The FDR court, in one of the most DISHONEST assertions of power in history, refused to say that (maybe because they foresaw the problem over the Second Amendment and another item or two in the Bill of Rights). What the Supreme Court did was to say that it would make a separate determination of whether each of the Amendments in the Bill of Rights is so fundamental as to be applied to the states by the 14th Amendment. However, once that determination is made, then the protection of that Amendment will apply to the states the SAME as it applies to the Federal Government, even though the Amendment may--like the Firt Amendment--SAY it only applies to Congress. Thus, the Supreme Court asserted the power to make the states comply with the Bill of Rights AS IF each state were the Federal Government--a total fiction and violation of what the Framers meant the Bill of Rights to be. It was a naked Federal power grab. And the idea that the Supreme Court could "pick and choose" which Amendments were "important" and which were not was ABSURD.


This doctrine of "selective incorporation" was developed abut 70 years ago, and has been the law of the land. The Second Amendment has never been "incorporated" before, but neither has it NOT been incorporated. Further, if you are intellectually honest, as leftist are not, you have to see that every substantive part of the Bill of Rights MUST be "Incorporated" as "fundamental", because how else can you define something important enough to be in the Bill of Rights? That is what Alito was saying, and he is right. It is what I would have decided, were I on the Supreme Court.


"But", my brother says, "you don't believe the 14th Amendment should ever have been sued to extend Federal power this way. You think STATES have the right to ban guns, because the Bill of Rights does not apply to the states. You hypocrite, you."


Not guilty. First, of course, I would STRICTLY enforce the Second Amendment, and limitation of Federal power inherent in our very system set up by the Constitution and affirmed in the 9th and 10th Amendments, beyond what the Supreme Court now does. That is one of the many evils of applying the Bill of Rights equally to the states and the Federal Government. The Federal Government, as the more dangerous entity, should be MORE restricted than the states, and it is further supposed to be an entity of LIMITED powers. That means error should be on the side of LIMITING the Federal Government. That is not true of the less powerful states.


But almost no one accepts my view on this. And I did not get the top grade in my University of Texas School of Law Constitutional Law class by asserting my view as correrct, and ignoring the way present law actually is. Nope. Alito is correct, even if he happens to agree with me about the Bill of Rights (and he probably would not say he does). There is such a thing as precedent. And if you are going to be a REVOLUTIONARY setting aside 70 years of settled Constitutional Law, you have to prepare the way in small steps.


The first step is to require INTELLECTUAL HONESTY in tis interpretation of the 14th Amendment started by the FDR court. That is what the Supreme Court rightly did in applying the 14th Amendment to all state action. If the Second Amendment is not "fundamental", then why is it the SECOND AMENDMENT. And that reference to state militia can't possibly affect that under the FDR court principle, just as the reference to "Congress" in the First Amendment was not allowed to derail the FDR court.


If the FDR court principle of how to interpret the 14th Amendment has to be basically accepted as presently established law, and it does, then it must be applied with HONESTY. That is what the Supreme Court majority did, and what I would have done. Now I might have--in "dicta"--tried to prepare the way for returning to the actual Constitution, instead of the entirely different thing created by the Supreme Court. But it is too much to expect for any present member of the court to be that revolutionary.


In context, the Supreme Court was dead right in its gun right decision,. At least the "conservatives" were dead right. The leftists on the court were dishonest hypocrites, but that is nothing new.


P.S. The title reference is, of course, to Charlton Heston's famous statement that "they" (the government) will only be able to take his gun away from him if they "pry it from my cold, dead hand". Isn't it nice that the FDR Supreme Court set in motion the application of the Second Amendment to th states, thereby saving conservative gun rights advocates, like Heston, from this fate. Sure, we can see from the leftists on the curt, who dissented, that leftists never intended to be intellectually honest in this. Still, the principle they created has ended up helping the NRA. I love it.


P.P.S. What if there were no 14th Amendment (and it never would have passed without the Civil War)? Well, you might well tink that the Supreme Court would have MADE UP another method of reading their own power--own values of the individual justices--into the Constitution (an unconstitutional act). From 1900 (and before) to 1935, there was "conservative activism" on the U.S. Supreme Court. The really is no such thing as "conservative activist" judges now, in the sense of leftist activists. There was then. Conservatives used the "due process" clause, rather than the 14th Amendment's other language, to impose their views to invalidate state laws and actions. They did this mainly to protect business and property interests. This was called "substantive due process", and was sort of discredited by liberal/FDR critics. I say "sort of", because the left has returned to the concept of substantive due process--as distinguished from procedural due process--from time to time. The criticism was that substantive due process was used to impose the policy views of the conservative justices on the nation (lol). See what hypocrites leftists are!!!! That is, of course, exactly what leftists want the Supreme Court to do--but by imposing leftist views--and it is exactly what leftist activist justices/judges are doing. You may, therefore, conclude that the Supreme Court would have found a way to make the same power grab, even without the 14th Amendment. Power corrupts, and absolute power corrupts absolutely. The Supreme Court was corrupted long ago. That does not make it right. It is an unconstitutional usurpation of power. If you are going to usurp power that way, however, you have to accept that the principles you advocate will have consequences you may not like. That is what has happened to leftists with the gun rights decision, as the conservative--sort of--majority has simply applied the FDR court principle with INTELLECTUAL HONESTY. That is exactly what they should have done.