falcon1 said:
Joe, if I understand your argument correctly, I agree that the Second Amendment has never been "incorporated" by the SCOTUS. However, I would submit that the language of the Fourteenth ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States....") does incorporate the Second whether the SCOTUS has recognized it or not. Otherwise, how can one say the right truly exists?
If I do have the right to bear a firearm to defend myself as an American citizen, then neither New York, Illinois, or any other state can legislate that right away...and any attempt to do so is null, void, and no law. (I realize I am not really talking the law here, which one should never confuse with justice; I'm talking political philosophy.) The Bill of Rights grants no rights, it recognizes those that already exist and pledges the national government to respect them. I believe that the Fourteenth Amendment extended that requirement to the states as well as a matter of political philosophy. Unfortunately, as a matter of law, it has not. But that does not make SCOTUS' interpretation in this matter just, or even correct.
If Congress cannot, however, act under the Fourteenth and Second Amendments to restore a right to citizens, the right doesn't exist. I'm afraid your argument keeps us in the place we are now, where each state can, on its own, decide whether what I believe to be a fundamental human right of all free persons pertains to their citizens or not--i.e., it really isn't a right, it's a privilege. With that notion, I must respectfully disagree.
Firstly, let me compliment you on a well though out position. However, there is a fundamental distinction here which I believe we need to make. That distinction is between the grants of power found in the constitution, and the explicit limitations placed upon that power found in the constitution.
In regard to Congress, its powers are enumerated in Article I, Sec. 8.
Article I, Sec. 9 is a list of limitations on these powers of congress. Art. I, Sec. 10 is a list of limitations upon the states's powers.
The BoR is a list of limitations upon Federal Authority. It provides things which no branch of the federal power may abridge. However, as is evident if you read the preamble to the BoR, it was strictly a federal limitation, not a state limitation.
Either way, both the BoR and the limitations of Art I, Secs. 9-10, are self executing. They are law and are to be applied as such by the judiciary. What they are NOT, is some sort of grant of federal legislative authority to protect these things. There is no need for legislation to execute these provisions because they are already law. It is the task of the executive to execute these provisions, and of the judiciary to apply them. IT IS NOT THE TASK NOR THE PROVINCE OF THE LEGISLATURE TO TRY TO EFFECT THESE LAWS BECAUSE CONGRESS LACKS THE CONSTITUTIONAL AUTHORITY AND COMPETENCE.
I believe that we agree that Congress is limited to the enumerated powers of Art. I, Sec 8. Within these enumerated powers, there is no power to attempt to effectuate incorporation of the BoR through the 14th Am. It simply is not there.
Ultimately, what I am trying to get at is that the limitations placed upon the federal and state governments do not imply nor include any grant of federal legislative power. They are limitations upon power, not grants of more federal power. No one argues that the limitations upon state power listed in Art. I, Sec. 9 somehow grant Congress an enforcement power. Rather, they are enforced by the executive and applied by the judiciary.
As a matter of political philosophy, I agree that there is a fundamental right of self-defense which cannot be abrogated by the government. However, I am violently opposed to using this arguement to grant Congress extra-constitutional authority over the states. I am much happier leaving these things as local issues. Consider that congress passed the GCA of 1934, the NFA, GCA 1968 and various other radically unconstitutional and philosophically illicit measures. They are the last bunch of crooks I want to grant some extraconstitutional power to effectuate the execution/application of the laws.
The problem here really comes down to the federal judiciary's failure to apply the 2nd Amendment and the state judiciary's failures to apply the RTKBA provisions of their own constitutions. Giving Congress more power is a sure recipie for disaster, no matter how sweet the present plum looks.
All the best,
Joe