By Douglas V. Gibbs
Senator Mike Lee (R-UT) has decided to push a countrywide constitutional carry firearms bill which would by federal law eliminate concealed carry permits, fees and criminal penalties for legal gun owners if they wish to conceal carry a gun in public. The National Constitutional Carry Act follows a trend of constitutional carry laws that have emerged around the country, currently approved by twenty-nine states. The new federal law would require that all fifty states “protect the right to carry without a permit.”
The bill was originally proposed by Thomas Massie (R-KY) last year, and would prohibit state and local governments from requiring licenses that impose fees and other conditions on public carry and would bar states from criminalizing public carry for eligible citizens. The law would also respect private property rights and government properties who decide that they wish to not allow an individual from carrying a firearm onto the premises. Individuals who are not legally allowed to own a firearm would remain prohibited from carrying one.
The bill is supported by the National Association for Gun Rights and Gun Owners of America.
I support the idea behind it, but if one carefully examines the original intent of the Constitution of the United States, the bill may face one major obstacle – it is unconstitutional.
Don’t get me wrong. There are few people more supportive of gun rights and the right to keep and bear arms than me. The word “bear” in the Second Amendment means, if one was to reference the 1828 Webster’s Dictionary as a resource, “to bear arms in a coat.” The right to keep and bear arms is a God-given Natural Right and every single federal gun law is unconstitutional due to the language of the Second Amendment and the Preamble of the Bill of Rights.
In a discussion regarding this bill on my radio program, Constitution Radio on KMET 1490-AM (Saturdays 1-3 PT), I offered to the panel on air with me an alternative way of looking at this to see what the response would be. The final words of the Second Amendment are “shall not be infringed.” Does Senator Lee’s bill “infringe” on the right to keep and bear arms? Or is it designed to actually do the opposite?
One of the members of the panel considered the viewpoint as reasonable, but doubted it was constitutional. The other two individuals pushed back recognizing that the Enumeration Doctrine is pretty clear. The right to keep and bear arms, or any other issue directly associated with the ownership or bearing of arms, must be expressly enumerated in the Constitution as an authority if the federal government was to have the authority to pass any legislation regarding guns. The Tenth Amendment is clear: if a power is “not delegated to the United States by the Constitution, nor prohibited to the States,” the powers are “reserved to the States respectively, or to the people.” In Federalist Paper #45, James Madison also explains that our Natural Rights are a state issue, not a federal one.
Which brings us to a concept known as the “Incorporation of the Bill of Rights to the States.”
The Fourteenth Amendment, ratified a few years after the conclusion of the War Between the States, was designed to disallow the States from passing laws or take actions that would unfairly treat the newly emancipated former slaves.
The primary author of the Due Process and Equal Protection clauses of the Fourteenth Amendment, John Bingham of Ohio, intended for his clauses to authorize the federal government to enforce the Bill of Rights against the states, and to effectively ensure that the southern states never act in a rebellious manner ever again. The intent Bingham searched for, an Incorporation of the Bill of Rights to the States, has since taken hold and in the legal, academic and political communities the Incorporation Doctrine is considered to be the law of the land. Based on that belief, Senator Mike Lee sees no problem with the federal government policing the states regarding the Bill of Rights, and passing legislation to instruct the states regarding how they pass laws that involve any of our Natural Rights.
The problem is, when Bingham testified to Congress his intent, the legislators of the time rejected the Incorporation Doctrine. The Fourteenth Amendment was proposed with both Houses of Congress providing that the language of the Fourteenth Amendment did not support any idea of an incorporation of the Bill of Rights to the states, and the states ratified the amendment with that in mind. In short, the Incorporation Doctrine is unconstitutional.
The Enumeration Doctrine demands that the only powers authorized to the federal government are expressly enumerated in the Constitution. Without a power being listed in the Constitution, the federal government does not possess that power. Guns are not listed anywhere in the Constitution as an authority of the federal government – and the only place arms are discussed, it is followed by the words “shall not be infringed.”
All federal gun laws are unconstitutional – period. Mike Lee’s bill, no matter how well intentioned, does not have any constitutional support. Only the states may make laws regarding guns. But, even then, the states have limits. They may only make necessary laws that are fully within the Rule of Law.
Let the states make their decisions. After all, 29 of them have constitutional carry laws. They are popular and the states are falling in line with the concept. Any states that don’t will probably pay the price, largely by suffering from the reality that residents of their states will be more than happy to vote with their feet. It is up to the states to make it happen, not the federal government.
— Political Pistachio Conservative News and Commentary
