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A Constitutional Perspective On The Gun Debate A debate over the right to bear arms is healthy, but it should also

be informed, so I would like to share some historical and legal insight into our Constitution and I do this for the benefit of both sides. We must recall that the Constitution gave the federal government only a few enumerated powers. Any power not granted to the federal government, nor prohibited to the states, is reserved to the states or the people as the Tenth Amendment reminds us. Thus state governments may do anything the Constitution does not forbid, while the federal government may do only what the Constitution allows. Bearing this in mind, the federal government has no power to restrict arms ownership because the Constitution grants no such power. While this might vex people on the left, those on the right should remember that state governments retain broad power to restrict arms ownership as they see fit, since nothing in the Constitution forbids it. But what about the Second Amendment? The Second Amendment is part of the Bill of Rights, which the anti-federalists demanded as additional security against the proposed federal government. On the opposing side of the debate were the federalists, who criticized the Bill of Rights as unnecessary because the federal government would possess only enumerated powers. But in the spirit of compromise, the Bill of Rights was adopted and served as a backstop even if the federal government one day ventured beyond its enumerated powers. The Bill of Rights did not restrict the states. None other than Chief Justice John Marshall, who authored the famous decision of Marbury v. Madison establishing the power of judicial review, held in Barron v. Baltimore that the Bill of Rights restrains only the federal government because it was the source of the founders anxiety. The Second Amendment reads as follows: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. Thus the security of the states is paramount, confirming that the amendment was designed to restrict federal power. A well regulated militia is often mistaken to mean regular armed forces, but a militia consists of private citizens who bear their own arms and who might be called upon to defend their state when the need arises. Apart from these declarations of purpose, the final clause makes it clear that all the people enjoy this right and can do with it as they choose within their respective states. What has generated so much confusion over the last century is that the Supreme Court has applied the Bill of Rights against the states while carving out novel (and vague) exceptions that appear nowhere in the text. For example, it used to be that state governments could restrict speech while the federal government had no such power; a state restriction against shouting fire in a crowded theater was presumptively valid, but a federal restriction against the same conduct was invalid. The Supreme Court has wiped out this clear distinction between state and federal power, causing an explosion of litigation by liberals and conservatives that makes the federal government ever stronger while leaving the state governments ever weaker. And this is precisely what the Court

recently did with the Second Amendment in District of Columbia v. Heller and McDonald v. Chicago. Henceforth, the right to keep and bear arms is no longer absolute as against the federal government, nor is the states discretion to regulate arms absolute within the states own borders. Because there is no clear standard for what can be done to regulate gun ownership, the debate will rage on for the foreseeable future, and the courts will leave us with even more tortured and ambiguous precedent to puzzle out. We could have avoided this mess if we simply had abided by the Constitution as written and intended, which allows each state and its citizens to experiment with solutions that work for themselves. America was founded to accommodate diversity; today, unfortunately, the federal government claims power to impose a monolithic solution on us all, and that is what has sparked such unnecessary strife with regard to guns and much more.

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