Mandeville, LA - New listeners to my radio show are always asking the same questions about the Most Hallowed Second Amendment: that Ted Nugent and the NRA, traveling in their WAYBAC machine witnessed Thomas Jefferson applying ink dry powder to the Constitution's second Amendment. Nugent asked: "So, this will cover every gun, in every city, state, county & federal land, forever until eternity, right?" Jefferson, awed by Nugent's stature and LaPierre's John marshal like gaze replied "Why yes, I wrote this so this and the other 9 Amendments were chiseled into stone as distinctly as Washington's chin, that they would apply to any law, now and forever dreamed of in any state, county or General Government territory, until the end of time."

Of course, Jefferson didn't write any of the BOR and the author James madison made it clear that those 14 Amendments (10 were ratified) were to EXCLUSIVELY limit the powers of the NEW (1789) General Government. Ah, but the NRA/Nugent/John Birch propaganda campaign for incorporating (federal courts using the BOR to strike legal, constitutional laws written by the states) is so complete, that Hannity & Levin's hands shake if denial of this sacred screed is mentioned.

That doesn't make it true and that doesn't make it "constitutional" which is an impediment to both Libtards and DeceptiCONS designs to expand the federal stranglehold. You have now reached the point of enlightenment, friends an [r]epublicans. As promised, I posed this question to Professor Kevin Gutzman for the 183rd time for a WRITTEN clarification on the matter. You will see my original query, plus the e-mail sent to me by a Nugent/Hannity/Limbaugh schooled disciple of Incorporation. Enjoy and be bold in spreading the truth. - Mike Church

Kevin,
I now have 12 requests for a brief explanation of why the BOR (and Amendment 2) are NOT incorporated by Amendment 14. Even though I explained this in great, accurate detail, some in the audience doubt my hands were nailed and ribcage cut so only your Credentials provide the gravitas to pout this matter to rest. 

Thanks, in advance!

Mike

 

Dear Mike,

The BOR isn't incorporated into the Fourteenth Amendment's Due Process Clause, as the Supreme Court has said most of it is, because "due process" refers to an adversarial hearing -- in most circumstances involving right to counsel, right to testify, right to compel witnesses, right to cross-examine witnesses, right to neutral finder of fact, etc.  If it had been incorporated, someone -- anyone -- could have been expected to mention that fact when an amendment to include the separation of church and state principle in the Constitution was debated in the late 19th century; no one said, "We don't need this because we have the Incorporation Doctrine" because no one had that idea.

Regards,
Kevin

Kevin R C Gutzman, JD, PhD
Professor of History
Western Connecticut State University
Author, _James Madison and the Making of America_
KevinGutzman.com
________________________________________

Mike,

Before you signed off this morning you were discussing the 14th Amendment and how it is not applicable to the 2nd.  You mentioned an explanation from Dr. Gutzman that I too would like to read.  I  have maintained as you do that there is no incorporation of the Bill of Rights to the States.  However, in my research I read the debates on the 16thAmendment and this struck me as an attempt by the Federal government to incorporate the “Bill of Rights.”  I do not remember Dr. Gutzman addressing my argument in his book, so here it goes.

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Although this Amendment is often used to justify the issue of citizenship for the children of illegals, the ratification debates actually demonstrate a different tone.

The ratification debates specifically go to the application of the 2nd Amendment and any prohibition on the rights secured by the Constitution.  In the years following the War Between the States, “Freedmen” were deprived of the “Right to Bear Arms.” Many of them were imprisoned, arrested and beaten by police for possession of firearms (many believed they were up to no good because they carried a firearm). Without attempting to repeat the entire extent of the debate, I will refer to a link;
http://www.constitution.org/col/intent_14th.htm

Understanding that the 14th Amendment as many would argue was passed under duress; Southern States were not allowed Re-admittance in the Union without ratifying it.  In a quote by Representative Wilson in 1866, liberty "Consists in the power of locomotion, of changing situation, or moving one's person to whatever place one's own inclination may direct, without imprisonment or restraint, unless by due course of law." I believe this statement demonstrates the intent of the 14th was to eliminate the rights of the States to make laws against the rights guaranteed under the U.S. Constitution, arguing that a person’s liberty does not end at a boarder. It seems to me, with as much as I feel it is out of the scope of the founders, the intent of this Amendment WAS to incorporate the “Bill of Rights” so as to ensure the rights of personal liberty from one State to the next.

I look forward to your comments on this because my research has put a hiccup in my own argument that supports the idea that the SCOUS has no jurisdiction on state laws unless it falls under those cases that are enumerated to the court.  If my interpretation of my research is correct, then any law made by the States that infringes on the 2nd  Amendment (or any of the “Bill of Rights”) is effectively nullified.  If it is not, then my argument and yours is true and there is still no incorporation of the Bill of Rights to the States.

Keep up the good work.

Chris Rufert
Charlotte, NC

 

Here is a link to the original article, with audio, that is being referenced herein:

Kevin Gutzman on the 14th Amendment