Guest Post: Incorporation and the 2nd Amendment

Hi, this is a guest post from my blog, which I am reproducing here without any editing, save for this introduction and a short bit about who I am at the end of the post. Ryan was very kind to ask me to reproduce this here and I hope everyone enjoys reading this as much as I enjoyed writing it.

More theoretical political thought, since the last post on American political history and thought was oh so popular! This one is on the recent extension of Incorporation to the 2nd Amendment. Of course, the 2nd Amendment – the right to bear arms – has been probably the most contentious of the Bill of Rights, and dutifully so. A very strong percentage of Americans, especially American liberals, believe that gun control is an important method of crime prevention, especially aggressive and violent crimes.

Due to the case of Barron vs. Baltimore, the Bill of Rights was not applied to state or city governments in the United States; therefore, according to constitutional precedent, while the federal government cannot unreasonably restrict the right of a person to bear firearms, the many state and municipal governments are not bound by that particular restriction. Many states and especially cities, therefore, established laws banning handguns and other restrictions. One of these cities was Chicago.

The Supreme Court, in 2008, ruled that the 2nd Amendment applied to federal exclaves (such as Washington DC), but that left the question as to whether or not the 2nd Amendment applies to the several states. 2 years later, the Supreme Court ruled on McDonald v. Chicago, in which a restrictive set of gun regulation laws were challenged by several residents of Chicago, supported by various pro-2nd Amendment groups. The Court found that the 2nd Amendment, via the 14th Amendment, applies to the constituent governments of the United States, thus, incorporating it. However, interestingly, the Court specifically said that this ruling was used only to invalidate unreasonable restrictions on personal weapons, rather than overturn long-lasting bans on assault weapons and the like. The ruling also specifically does not invalidate weapons regulation exercised under the Commerce Clause of the Constitution.

A lot has been made of this particular case, and the Incorporation of the 2nd Amendment, but I’m pretty sure the Supreme Court did the right thing in this case. For better or for worse, the Founders of the United States intended that the government allow their people to have guns. You can argue over whether or not they intended those weapons to be used only in a militia, but case law suggests the Courts have interpreted it to mean that firearms are allowed. Because I am a firm believer that the 14th Amendment should have automatically incorporated the Bill of Rights anyway, it’s only logical that this case should win my support.

Canada doesn’t have a constitutional amendment that in any way suggests guns are a right of the people, but we’ve had our own problems with gun regulation and registration. Even the Canadian Firearms Registry, which on the surface was a simple legislative move to make sure people register their guns, ended up being a multi-billion dollar boondoggle and ethical scandal. There’s really no way around the fact that gun restrictions only punish people who own guns legally, and generally, use them responsibly.

The type of crimes that involve a legal firearm are the type of crimes that would often occur without that particular advantage. In crimes of passion, a knife can easily be substituted for a gun, or a club, or any other sort of weapon. Making entire classes of common firearms illegal simply create an illegal market for it. I’m not saying all gun regulation is bad, but it’s a bit foolish of any federal, state, or provincial government to believe that by restricting access to hunting rifles or handguns, they will just disappear. That’s the same sort of poor reasoning that has led to the failed War on Drugs, and led to the US’s disastrous flirtation with Prohibition, which has influenced American economy and politics for eight decades.

Handgun bans and hunting rifle restrictions cannot solve the problem of violent gun crime. Violent gun crime is a product of the destitute urban environment, and focusing on laws that tend to punish those who only want to own guns legally is a bad way to solve a problem as prolific as gang warfare. In this case, as in many cases, the best way to solve gun crimes are to educate people better, and decreasing the poverty level in the USA. When it comes to gun regulation, I am more in favour of commercial restrictions (like a waiting list), restricting based on previous gun crime (with exceptions available for people who may be in legitimate danger after an attempt at rehabilitation), and requiring legal gun owners to take safety courses, lock their ammo and guns up separately, and use trigger locks – most of which are steps people take anyway.

Incorporation is a good thing, and I honestly believe that this step by the Supreme Court, deliberately limited in scope to avoid invalidating laws that even a somewhat conservative court considers important, is a positive one towards applying all the Bill of Rights equally throughout the several states. It also may stop cities from wasting their time punishing people who buy and own guns legally and safely, and force them to concentrate on ending America’s obsession with letting kids grow up believing that gang warfare is a legitimate lifestyle. We need to teach children that guns are not a toy, but a tool – a device designed to let us kill with ease. Like all tools, it only reflects the intent and skill of the wielder, though it is more dangerous, we shouldn’t demonize the device; rather, we should demonize the behaviour that leads to gun crime being so prevalent.

Benjamin Stonier, who goes by the handle Veritas online, is a 25 year old resident of Nova Scotia, Canada. He is passionate about history and politics both north and south of the 49th parallel. He has never fired a gun. He blogs at, and can be reached at [email protected]

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