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Tuesday, March 12, 2013

Doctrine of Incorporation, Due Process, the 2nd Amendment & NYS

Always fascinated, albeit troubled, by the intriguing and often corrupting twists and turns of constitutional development, I happened upon the seemingly esoteric “doctrine of incorporation” which should be of more than passing interest to those of us who honor the Constitution and extoll the virtues of the 2nd Amendment.

Unknown to most is the fact that at the Republic’s inception the Bill of Rights, the first ten amendments to the Constitution, was ratified by the States to limit the powers of the federal governmentNOT the powers of the States. This founding principle was reaffirmed by the Marshall Court’s unanimous ruling in Barron v Baltimore in 1833. However, because the States were so closely invested in and supportive of the foundational principles and liberties enshrined in the Constitution, States had routinely applied the Bill of Rights within their jurisdictions without federal judicial intervention or congressional interference.

 All that changed with“ratification” of the 14th Amendment in 1868 when States were suddenly and gratuitously prohibited by the federal government from depriving any of its citizens of life, liberty or property without due process. This would be fine and entirely lawful were it not for the glaring historical realities that 1) the 14thwas improperly ratified, thus in violation of the Constitution itself, meaning that the 14th is simply and categorically unlawful, and 2) that, as said, the Bill of Rights was originally intended to limit federal—not State powers.

To wit, despite the 14th's lofty intention to protect the civil rights of emancipated slaves in all states, as constitutional scholar Dr. Gutzman noted,“The Fourteenth Amendment was never constitutionally proposed to the States by Congress and never constitutionally ratified by the States”. (Without getting into the nitty-gritty here, for an instructive and detailed analysis of the 14th's rigged ratification process, I refer you to pages 128-133 of Dr. Gutzman’s “The Politically Incorrect Guide to the Constitution”. It’s a sobering eye-opener.)

In effect, with "ratification" of the 14th the Bill of Rights was, by fiat and for purposes of political expediency, incorporated against the States. Whether a good thing or bad thing, it is still unconstitutional and the result has been an unbroken stream of errant and intrusive judicial rulings which, over the years, has piled one violative ruling atop another—we fondly dub that stare decisis—effectively nullifying original intent and rendering the foundational doctrine of State sovereignty increasingly irrelevant.

Rather than relying upon the will of the citizens of the various States to determine what does and does not violate the Constitution within their sovereign territories, the federal judiciary has successfully, albeit illegally, usurped State jurisdiction and authority. This has resulted in our having permissively elevated the standing of the Supreme Court to that of an arbitrary modern day Delphic Oracle whose infallible--and often tragically unintelligible--pronouncements are routinely deified by an ignorant and disengaged citizenry. In effect, the Supreme Court has eclipsed the constitutional authority of the States, but, in many ways, of Congress and the Executive as well. NOT AT ALL what the framers had envisioned!

As Thomas Jefferson warned in 1820, “to consider the judges as the ultimate arbiters of all constitutional questions [would be] a very dangerous doctrine indeed, and one which would place us under the despotism of a [judicial] oligarchy”. And that’s precisely where we find ourselves today. And permitting Congress broad authority to dictate gun rights throughout the country is nothing short of insane.
With particular respect to the 2nd Amendment, and despite the National Rifle Association's best intentions to protect a citizen's right to keep and bear arms, NRA’s relentlessly pushing the federal government to impose conceal-carry reciprocity agreements among the States or to extend blanket protection to all American citizens of their right to keep and bear arms serves little more than to invite the ravenous fox into the proverbial chicken coop.

So, yes, while the Supreme Court’s McDonald v Chicago ruling (which extended the right of all citizens to keep and bear arms) is hailed by 2nd Amendment advocates, we should also be mindful that what we permit the feds to give can also be taken away.

In short, if the State is sovereign, and the 2nd Amendment is intended to restrain the federal government, then by what stretch of logic and commonsense should we entrust the federal government to faithfully uphold the rights of citizens in all the States to keep and bear arms? Obviously, we can’t! As can be seen, Feingold and Company are already attempting a mindless curtailment of gun ownership in each and every State. So much for States restraining the federal government from infringing our gun-bearing rights, huh?

 And, finally, there’s the disturbing issue of Gov. Cuomo’s assault on our inherent right to keep and bear arms.

While 44 State Constitutions specifically uphold a citizen’s right to keep and bear arms, NY’s Constitution does not. Strictly speaking then, since, from the originalist standpoint, the feds have no constitutional authority to dictate gun control in NYS, and since there is no specific right to keep and bear arms in the NYS Constitution, decisions regarding gun ownership and any limitations thereto in NYS remain the sole province of the citizens of NYS. Thus, though self-defense is, in my humble opinion, a God-given right which trumps both State and federal law, I still strongly suggest that NYS citizens insist that the NYS Constitution be amended to include a provision which specifically prohibits the State from in any way infringing a NYS citizen’s right to keep and bear arms. (And while they're at it, they would do well to ensure that the 10th Amendment language is adopted as well.)

As this "doctrine of incorporation" illustrates, we’ve certainly made mincemeat of the Constitution, and in the process we’ve created mountains of needless uncertainty, contradiction and jurisdictional confusion, all of which serve only to either obliterate or erode individual liberties. My advice: we’d best get back on solid constitutional footing—and soon--or the vacuum of lawlessness created by this jurisdictional muddle may well be filled by political opportunists driven by motives other than purely republican.

“To preserve liberty, it is essential that the whole body of the people always possess arms and be taught alike, especially when young, how to use them.” Richard Henry Lee, Letters From The Federal Farmer, # 18 (January 25, 1788)

"The best we can hope for concerning the people at large is that they be properly armed." Alexander Hamilton, The Federalist Papers at 184-188

 "No Free man shall ever be debarred the use of arms." Thomas Jefferson, Proposal Virginia Constitution, 1 T. Jefferson Papers, 334,[C.J. Boyd, Ed., 1950]

"And that the said Constitution be never construed to authorize Congress ... to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.... " Samuel Adams

“The said Constitution [shall] be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless necessary for the defense of the United States, or of some one or more of them.” Samuel Adams, Debates & Proceedings in the Convention of the Commonwealth of Massachusetts (February 6, 1788)

“Are we at last brought to such an humiliating and debasing degradation that we cannot be trusted with arms for our own defense? Where is the difference between having our arms under our own possession and under our own direction, and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?” George Mason

“The rights of conscience, of bearing arms, of changing the government, are declared to be inherent in the people.” Fisher Ames in letter to F.R. Minoe (June 12, 1789)