Second Amendment and U. S. Gun Promiscuity

The Second Amendment has yet to be “selectively incorporated,” and this is where reasonable gun measures might be enacted. The Bill of Rights did not originally apply to the states, though Madison, its author, wished it would. Gradually, each Amendment has been “Selectively Incorporated,” to assure, for example, that no state government forbid free speech or religion. The Amendments are funneled through the Fourteenth Amendment, the post Civil war requirement that states not violate the Fifth Amendment guarantee of liberty. The right to counsel, to have a lawyer, has, for example been required of the states following the Gideon v. Wainwright decision. Prior to this, the right to be represented by a lawyer applied to federal but not to state trials. The exceptions are the second and Eighth Amendments, which have not yet been selectively incorporated, according to our Cummings and Wise political science text. And this is where progress might be made on gun control. We have suggested state licensing similar to the driver’s licence, where those not meeting minimal conditions of safe driving can be excluded from the highways for the benefit of the other drivers they might injure. The answer was that we do not have a Constitutionally recognized right to drive, but we do have a guarantee that the right of the people to keep and bear arms will not be infringed. We will have to figure out what this means and how it might be partially incorporated with adaptations to the states. But the states are not bound by the Second Amendment directly, and this is where progress might be made. States can forbid gun shows, for example, and other forms of irresponsible sales, and we think the states can require licences like the permit required to carry a gun concealed. And if the states do the regulating, the conflict between the NRA and the federal government can be side stepped, and we will have to consider the meaning of the purpose of the second Amendment, pertaining to the need for a well regulated militia in a free state. And local differences can then be considered, with different laws in Florida, Detroit, New York and Montana each suited to the local circumstances. Once again, the federal system where some state sovereignty is retained on certain issues proves the resilliance of the U. S. Constitution.

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