The 2nd Amendment And The States - With Dr. Kevin Gutzman

Here is an interview between Mike Church and Dr Kevin Gutzman speaking in great detail about the 2nd amendment and how it pertains to the case in chicago....

Mike: So Judge Napolitano says that the Second Amendment applies to all the cities and all the states and all the municipalities in the United States.

Dr. Kevin Gutzman: Right. Well, his book was called “A Nation of Sheep.” And essentially it was a book I could endorse about 95 percent. The one shortcoming was that he has this idea that all of your rights are based on natural law or that they are somehow suddenly the result of philosophical speculation. And so as we heard in the sound bite you played, if we have a right to self-defense, then that must be a right to keep and bear arms, which means you have a right to own a weapon that you might use in your own defense, and therefore no government in the United States can contravene this right.

Well, if he were right about the origin of your rights, that might be a reasonable way to get to that conclusion. The problem is that your right to keep and bear arms, like the other rights in the federal Constitution, is actually a historic right, not a philosophical one. It’s based on people’s experience as English subjects before American independence, where they had a right to keep and bear arms. And that right to keep and bear arms had certain contours. Now, when the Bill of Rights was adopted, it was intended entirely to reserve control over these questions to the state governments. That is the reason why we had a federal Bill of Rights was further to clarify the limits on federal authority.

Mike: Right.

Kevin: So when we have a Second Amendment, essentially what that means is that the federal government is to have nothing to do with your ownership and use of weapons. But that doesn’t mean that nobody is able to regulate your ownership and use of weapons. If neither the federal government nor the states can regulate ownership of weapons, are we saying that retarded people and insane people and felons and children can all own weapons? Clearly some level of government has to be able to regulate the use and possession of firearms.
Now, of course, if you look in the appendix to Tom Woods’ and my book “Who Killed the Constitution?” you see the Preamble to the Bill of Rights which says that the reason these amendments are being referred to the states is that people are afraid that the federal government is being granted too much power, and the point is further to clarify the limits on federal authority. So they were not supposed to be a limitation on state governments’ authority to say no children, no retarded people, no felons, no blind guys can own and use firearms. It’s entirely up to state governments to make that kind of determination.

Mike: Well, I mean, it makes perfect sense to me. And as I have studied it, that’s the conclusion I reach, too. So then today, let’s fast-forward to today. The SCOTUS, the Supreme Court of the United States, has already established as what you lawyers call stare decisis that the Fourteenth Amendment – and you can explain this better than I, so I’m going to unleash you in just a second here – that the Fourteenth Amendment and some language in it about due process entitles federal courts to apply certain parts of the Bill of Rights to all the states, which as you just pointed out is not the case. Now, the Supremes have a chance to reverse themselves on this today, and you don’t hold out any hope that they’re going to do that, though, do you.

Kevin: There is zero hope that they’re going to do that.

Mike: Right.

Kevin: Actually Raoul Berger, B-e-r-g-e-r, who is the greatest legal historian in American history, and just by freak coincidence he happened to be a Harvard professor, I mean, what are the chances, the great historian who’s the Harvard professor. But there actually were a couple of other ones. But Raoul Berger, who was the chief source of my knowledge of the fact that the incorporation doctrine is pure baloney, once was asked, well, what are the chances that we’ll get judges on the Supreme Court who will reverse this idea of the incorporation doctrine, that is, the applicability of selected Bill of Rights provisions against the states? And he said, well, I think that’s never going to happen because it’s just too much fun.

You know, if you’re a Supreme Court justice, it’s too much fun to have the final say over every interesting question of domestic policy. So obviously the Supreme Court is never going to say, well, it’s not our business to decide whether you can burn a flag or say a prayer or have an abortion or own a gun. I mean, why wouldn’t judges want to be able to decide these questions for 300 million people? And who cares that we never actually delegated them authority to make these determinations? You know, it’s just too much fun. You’re not going to give up that power.

Mike: So it’s a big incorporation party then. It’s a big lawyer party. We, look what we can do, we’re kings; right?

Kevin: Well, you know, being an appellate judge is actually a pretty boring job if you understand it the way you and I understand it ought to work. And so what they’re generally in the business of doing is finding new areas of policymaking that they can insinuate themselves into. And it seems that now they’ve decided, well, it’ll be really interesting if we could have the final control over questions about gun regulation. So from now on, instead of having local legislators, including state governments and city governments, make these determinations, we federal judges are going to start deciding these questions, too, right along with questions about, you know, mention of God or having abortion or any of these other interesting things that we should think we’d be able to resolve by having an election. We’re going to have the federal courts decide these issues, too.

And now what’s really appalling now is that people on the right are doing the same thing as people on the left. They’re calling for the judges to decide these questions in their favor, even though for 60 years conservatives have been saying the incorporation doctrine is baloney. Now that they have a majority on the Supreme Court, they’re using the same exact argument to get the policy outcomes they want from people on the Supreme Court. It’s – basically it goes to prove that the old liberal assertion that conservative complaints about judicial behavior were really just about the policy outcomes, that they would do the same thing if they had control, the liberals were right. So this is further proof of Tom Woods’ and my argument in “Who Killed the Constitution?” that really both parties behave the same way. They just abuse their positions to get the policy outcomes they want.

Mike: Wow. He is Dr. Kevin Gutzman. You heard him promote his book, “Who Killed the Constitution?” There’s another one, “The Politically Incorrect Guide to the Constitution.” Let me move on to another – and I get this question all the time on the air, and it forces me to go out there and learn and read stuff. And you can answer this, again, better than I. Somebody has already brought up, since you have been on the phone with me, well, Mr. Gutzman and Mr. Church, Mr. Smart Guys, explain how your argument comports with the Supremacy Clause of the Constitution.

Kevin: Well, the Supremacy Clause says that the Constitution and laws and treaties made in pursuit of or in furtherance or exercise of powers delegated by the Constitution is the supreme Law of the Land. That doesn’t have anything to do with whether the Second Amendment is enforceable against the states. If it’s enforceable against the states, then enforcement of it against the states would be part of the supreme Law of the Land. And if it’s not enforceable against the states, then refusing to enforce it against the states would be part of compliance with the supreme Law of the Land. If has nothing to do with anything. You know? [Indiscernible] Constitution, if the Second Amendment is enforceable against the states, then that enforcement is the supreme Law of the Land. And if not, then not. It doesn’t have anything to do with the question that we’re talking about.

Mike: Yeah, and that’s how I would have answered it, too. It’s supreme inasmuch as there’s got to be a – you have to be carrying out an enumerated power.

Kevin: Right.

Mike: Or doing something that the federal compact gives you the authority to do.

Kevin: Right. So to enforce against the states a provision that’s not supposed to be enforceable against the states is not an enforcement or observance of the Supremacy Clause. It’s actually ignoring the Supremacy Clause. I’d say this whole incorporation doctrine violates the Supremacy Clause because the Supremacy Clause says that the Constitution is the supreme Law of the Land, not that bogus arguments about enforcement of select Bill of Rights provisions that aren’t supposed to be enforceable against the states is the supreme Law of the Land. I mean, you know, I get this question all the time.

Mike: Right.

Kevin: People don’t seem to be able to make the distinction between provisions of the federal constitution that are supposed to limit the powers of people in the federal government and provisions of the federal Constitution that are supposed to limit the powers of people in the state government. We have provisions in the federal Constitution that are enforceable only against the states. So, for example, it says the states can’t coin money or can’t print money. And it says the states can’t maintain a navy. But that doesn’t mean that we have to enforce that same provision against the federal government, say nobody can have a navy because it’s the Supremacy Clause. I mean, it’s just [indiscernible].