Chief Justice John Marshall (1833). Strong States' Rights proponent.
The important thing is that, reading that decision, we find what this matter of incorporation was all about. Section II, B of the Opinion of the Court reads:
The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government. In Barron ex rel. Tiernan v. Mayor of Baltimore, [32 US] 7 Pet. 243 (1833), the Court, in an opinion by Chief Justice Marshall, explained that this question was “of great importance” but “not of much difficulty.” Id., at 247. In less than four pages, the Court firmly rejected the proposition that the first eight Amendments operate as limitations on the States, holding that they apply only to the Federal Government
I would have been surprised to learn that Chief Justice John Marshall wrote such an opinion, if I had not been reading his decision in Gibbons v. Ogden. I am pleased to learn that the Senators aforementioned hold in such esteem the decisions of Chief Justice Marshall’s.
As we read in the paragraph provided from McDonald v. Chicago, the Bill of Rights only applied to the Federal Government. In other words, the States could write laws that violated the First Eight Amendments. While that is, of course, wrong if you read the Federalist Papers, there is a very important reason for the philosophy he used to derive that decision.
His STRONG and DEDICATED belief in STATES’ RIGHTS.
Notice that he did NOT include the Ninth and Tenth Amendments in that decision. They were “incorporated” to both the federal and State governments. And the Ninth Amendment gives the exact same, if not more, protection of our natural rights than the Second. Hamilton explained those natural rights in Federalist 29 where Hamilton writes:
If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions. If the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force. If it cannot avail itself of the former, it will be obliged to recur to the latter. To render an army unnecessary, will be a more certain method of preventing its existence than a thousand prohibitions upon paper.
Yes, we can have guns to forcefully return our government back to a Constitutional one, though the Supreme Court still disagrees with me on this one.
At any rate, the decision of Justice Marshall in Gibbons v. Ogden is even more remarkable. It destroys this concept that the federal government can intrude in the internal affairs of the individual States through the Interstate Commerce Clause.
In Gibbons v. Ogden, for example, he writes:
The power to regulate commerce is general, and has no limitations but such as are prescribed in the constitution itself.
Reading the entire decision, you will find that he goes through most, if not all, of the enumerated duties of Congress. For example, coining money and regulating the value thereof, building post offices and post roads and so-on.
Essentially, the decision basically states that Congress’ role in regulating commerce is to prevent one State from stopping another State from using their roads, railroads and waterways in commerce. It allows only the States to decide what can be transported into their State for use by Citizens. In other words, if a State wants to allow fully automatic Mac-10s with 30 round magazines, the United States Government CANNOT stop it.
Justice Marshall wrote:
As to concurrent powers: it is highly important to hold all powers concurrent, where it can be done without violating the plain letter of the constitution. All these powers are essential to State sovereignty, and are constantly exercised for the good of the State. These powers can be best exercised by the State, in relation to all its internal concerns, connected with the objects of the power.
I am currently working on a book, A Clause for Concern, which has suffered a slight set back with this discovery. However, you can read the decision for yourself.
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Tags: 2nd Amendment, Bill of Rights, Constitution, Gun Control, Gun Laws, Guns, McDonald v. Chicago, Media, News Item, Second Amendment
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