Stand Up And Applaud
By Gov. Mike Huckabee Posted in 2nd Amendment | D.C. v. Heller | Law — Comments (13) / Email this page » / Leave a comment »
Gun owners and conservatives everywhere should stand up and applaud the Supreme Court's ruling today in favor of striking down the unlawful Washington, DC handgun ban.
Today's decision affirming the 2nd Amendment right to an individual owning firearms is a refreshing decision from the court, and reminds us how important the election of the next President can be. The Washington, D. C. ban on handguns was clearly unconstitutional and the court ruling today reminds us that our Constitutional rights are not geographical---one locale cannot decide a different right than other locales-they are Constitutional rights-not community rights
Judge Antonin Scalia wrote the Majority Opinion. Joining Justice Scalia were Chief Justice Roberts and Justices Alito, Thomas and Kennedy.
Many of you know I proudly own a variety of firearms and enjoy hunting as well as sports shooting with targets and clays. But even if I were not a hunter I would still be a firm believer in the Second Amendment right of Americans to own firearms for self-protection and as a matter of principle.
In 1998, after the tragic killing of a teacher and four students at the Westside Middle School near Jonesboro, Arkansas, I was being interviewed by Katie Couric on NBC's Today show. She intimated that mass murder on school campuses seemed to be confined to schools in the Deep South, where there existed a "culture of guns."
I assured her that yes hunting and ownership of firearms were Southern traditions. At the same time murder of innocent schoolchildren was most certainly not and such violence was inexplicable regardless of one's geography. When she continued to press, looking for some validation of her view that these shootings were in some way connected to the South, I firmly reminded her that Colin Ferguson boarded a train in New York and coldly killed 27 people before finally being subdued. That event occurred in New York where the gun laws are among the toughest in the country and where gun ownership is much lower than in the South.
We certainly should be tough on those who abuse firearms by employing them in a crime. But abolishing firearms because there are reckless abusers makes as much sense as abolishing cars because some people drive while drunk.
Most firearms owners are responsible and exceptionally careful and safety conscious. My own membership in the NRA is something I cherish and value. This is not so much because I love guns but because I love freedom, and I believe to trample on one part of the Bill of Rights is to trample on all of it.
A version of this blog is cross posted at www.huckpac.com.
Keep and Bear Those Arms — Comments (139) »
Stand Up And Applaud 13 Comments (0 topical, 13 editorial, 0 hidden) Post a comment »
that's it, it doesn't need to be qualified. You're right, it's a broad based right to own a weapon, or weapons, as many as you want, just because you can. The founders recognized this, why can't the libs, and the justices who want to make over the constitution in their own image?
who can read the Constitution which of course could not possibly be Obama....curious sir as to how you see the flip from Obama on this issue?
Freedom of Religion NOT Freedom from Religion
The part that worries us is that we had 4 idiots who could not manage a competent reading of the plain text of the Constitution. That's how important it is to get originalist-type judges in there - the very opposite of what Obama would pick.
Impeach the 5 usurpers
Most firearms owners are responsible and exceptionally careful and safety conscious.
In celebrating this decision keep on advocating this crucial point and ensure that this statement is true for many generations.
"Constitutional rights are not geographical--one locale cannot decide a different right than other locales-they are Constitutional rights-not community rights."
Sounds nice, but this statement demonstrates a profound ignorance of our constitutional history.
As drafted and ratified, the entire bill of rights, including the second amendment, did not apply to the states. As part of our federal constitution, the bill of rights proscribed certain actions by our federal government, not state governments.
It wasn't until the fourteenth amendment was adopted and the Slaughter House Rules case was decided (in early 1900's) that the bill of rights became enforeceable against the States through a judicial doctrine known as incorporation.
As a legal matter, the merits of incorporation are debatable. Justice Thomas doesn't buy it, and Justice Scalia has expressed skepticism towards it. Unfortunately, the history of incorporation has been one of "cherry picking," with Justices picking and choosing their favored provisions for ad hoc incorporation against the States.
As a disfavored right, the Second Amendment has not yet been incorporated against the States, and because Heller involves the District of Columbia and not a state, it still has not been incorporated against the states. In fact, Justice Scalia's opinion expressly reserved the question.
You seem to have some understanding of the doctrine of "incorporation" as found in the 14th Amendment, but you seem to have misunderstood its significance. The 14th Amendment commanded states not to make "any law which shall abridge the privileges or immunities of citizens of the United States ... without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Now, there is no way to understand the words "privileges or immunities of citizens of the United States" without reference to the bill of rights. What else could it mean? There is no judge - not Scalia, Thomas, or anyone else - who doesn't think the states are prohibited from violating the bill of rights. To say otherwise would be to read the 14th Amendment straight out of the U.S. Constitution. What some conservative judges object to is the expansive manner in which some liberal judges have interpreted the phrase "equal protection of the laws." If you read it expansively enough, it could be understood to declare unconstitutional all of those routinely unfair things which sully our lives. When conservative justices sneer at "incorporation" they are talking about all the new rights and privileges which their liberal colleagues have found in the penumbra of the "equal protection" clause, and then retroactively incorporated into the bill of rights. They are not saying that the states may disregard the rights that could be found in the bill of rights from the beginning.
Oh, and FYI, the 6th Amendment (i.e., the right to a speedy and fair trial) always applied to the states, even before the 14th Amendment. That's because it actually says it applies to the states: "the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed ... and to have the Assistance of Counsel for his defense." By implication, the 7th and 8th Amendments applied to the states as well. So the notion that the entire bill of rights only restricted the federal government is baloney.
Hang all traitors and secessionists! Hang them high!
- Me
First, I have had former Thomas law clerks tell me that Thomas doesn't buy the incorporation of the bill of rights against the state. While he has accepted that incorporation, by and large, is water under the bridge, he has explicitly argued that the establishment clause in the 1st amendment was not incorporated by the 14th amendment. See Elk Grove Unified School Unified v. Newdow
Second, do you have a citation to a pre-14th amendment federal case that applied the 6th Amendment to a state?
Third, all of this is irrelevant to my comment above. My point was that Governor Huckabee's statement that "Constitutional rights are not geographical---one locale cannot decide a different right than other locales-they are Constitutional rights-not community rights" is silly considering our constitutional history. If you disagree, say so.
First, if in fact you've talked to former Thomas law clerks, I'm sure that you've misinterpreted what they've said. Incorporation is not just "water under the bridge," it is settled constitutional law. And it should be, because the principle is clearly found in the 14th Amendment. Moreover, in the case you cite (Elk Grove Unified School v. Newdow), Thomas absolutely does not say that the rights guaranteed by first Amendment were not incorporated under the 14th Amendment. What he said was that one specific part of the Amendment, the establishment clause, is a "federalism provision." This means that it is carefully crafted to limit the power of Congress rather than the states. Thomas can make this distinction because the establishment clause, unlike the rest of the 1st Amendment, deals only with what the federal government may not do, rather than the civil rights enjoyed by all American citizens.
The rest of the amendment applies to both the states and the federal government, because it spells out specific rights that American citizens enjoy (i.e., freedom of religion, the press, speech, assembly, and petition). Those rights were incorporated by the 14th Amendment. Nobody on either end of the judicial spectrum denies that. Not Thomas, Ginsburg, Souter, or anyone else. Moreover, Thomas even suggests that there might be a "sensible" way to incorporate the establishment clause, but that it would "probably cover little more than the Free Exercise Clause." [1]
Second, are you seriously asking me to give you an example to prove that the 6th Amendment has always applied to state criminal cases? Really?
Third, I know what your point was. You point was to zing the Governor and show off your profound legal understanding. And you happened to be wrong. You began this strand by asserting that prior to the 14th Amendment the entire bill of rights only limited the power of the federal government. I had two responses. First, BS. That's clearly not true, as shown by Amendments 6-8. Second, even if it were true, so what? The 14th Amendment is part of the Constitution, and it has been for 143 years. Thus, your "point" does not invalidate the governor's point. In our system of government, constitutional rights are rights everywhere the American flag flies: they belong to citizens in Selma just as much as in San Francisco.
[1] http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=...
Hang all traitors and secessionists! Hang them high!
- Me
1. I heard Thomas’ former law clerk correctly.
2. Yep. That’s exactly what I was asking you to do. Your unwillingness to cite a case to support your assertion that the sixth amendment applied to state proceedings prior to the 14th amendment suggests to me that you are either shooting from the hip or prevaricating. So, I did a little research myself. Guess what I found. Give up? How about Klopfer v. State of N.C., 386 U.S. 213 (1967). That’s the case in which the Supreme Court overturned West v. State of Louisiana and spent about five pages explaining why the right to a speedy trial was such a fundamental right that it was incorporated by the due process clause of the 14th amendment. You’ll of course remember West v. State of Louisiana, 194 U.S. 258, 262 (1904) as the case where the Supreme Court flatly said, “The sixth amendment does not apply to proceedings in state courts.” Whoops.
3. Ok, now: true or false, the Supreme Court has incorporated the 2nd Amendment against the states. If you said “true” please go to the back of the class. Heller didn’t involve a state, so the Court didn’t reach the question. True or false: The 2nd amendment creates a constitutional right to bear arms. If you said “true” congratulations, you answered correctly. Heller held that we have an individual right to bear arms. But you ask, how can that be?!? How can we have a constitutional right if it’s not incorporated against the states? The answer is easy. Your constitutional right runs against the federal government and not (yet) against state governments. It may seem confusing to you now, but if you read up on the judicial doctrine of incorporation and how the bill of rights were initially enforceable only against the federal government it will become clear to you.
Thanks for posting. This is a victory & we should applaud it, & then get back to work.
5-4. We have 4 justices who disregard "the right of the people to keep & bear arms" & are just fine with not just infringing, but wiping it away.
What if Gore had been elected? Kerry in 2004? Does anyone else get a sick feeling in the pit of his or her stomach at how close this was, when it shouldn't have been close at all?
Likely, the 2 next justices to retire will be liberal justices who were in the 4 who disregard the constitution. Who would you rather choose their replacement - Obama or McCain?
Thanks Gov Huckabee for this piece, it's spot on. I'm not a hunter (I'd like to go someday with my father-in-law who is), but as you said, the 2nd Amendment is more than hunting, it's a broad based right to legally own a weapon for self-defense, sport, hunting, or just to have.
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