Conservatives and libertarians often turn to the federal courts to “protect their rights” through an application of the Bill of Rights to the states. This is a bad strategy. Most of the time it fails, and we end up with bad precedents that apply to the entire United States.
Case in point: a federal judge recently upheld strict Washington State gun control laws.
Voters passed the new regulations on firearms in 2020. Initiative 1639 raised the legal age to purchase a semiautomatic rifle to 21 and instituted enhanced background checks. It also prohibited the sale of these rifles to non-residents. The ballot initiative passed by nearly 60 percent.
Opponents of the new law decided to make a federal case out of it and sued in federal court, arguing the restrictions violate the Second Amendment. Last month, U.S. District Court of Western Washington Judge Ronald Leighton upheld the Washington law, citing current federal law that bans the sale of handguns to people under the age of 21 along with state laws imposing age-restrictions on gun sales dating back to the 19th century.
“These authorities demonstrate that reasonable age restrictions on the sale, possession, or use of firearms have an established history in this country,” Leighton wrote.
The judge’s opinion notwithstanding, the federal government has no constitutional authority to place any restrictions on firearms. The Constitution does not delegate any firearm regulating authority to the feds, and the Second Amendment slams the door on any regulation on firearms within the scope of other constitutionally delegated powers such as regulation of commerce. “Shall not infringe” does not come with an asterisk. No terms and conditions apply. The Second Amendment absolutely prohibits any federal infringement on the right to keep and bear arms.
But this should have never been a federal case to begin with. It should have been decided in state court under the Washington state constitution. Section 24 of the state constitution restricts state regulation of firearms.
“SECTION 24 RIGHT TO BEAR ARMS. The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.”
So why did it end up in federal court? Because of the bastardization of the 14th Amendment known as the “incorporation doctrine.”
When it was ratified, the Second Amendment was not understood to apply to state governments. The Bill of Rights restricts federal power. The preamble to the document makes this clear. Nobody arguing for the ratification of the Bill of Rights claimed it applied to state or local governments. In fact, if they had, it would never have been ratified. It wasn’t until the Supreme Court invented the “Incorporation Doctrine” out of thin air based on a dubious reading of the 14th Amendment that anybody seriously considered the Bill of Rights as a restriction on the actions of state governments.
A lot of civil libertarians like the incorporation doctrine because they believe the federal courts will protect our liberty from overreaching, onerous state and local governments. In theory, the incorporation doctrine empowers federal courts to police the states in order to stop state governments from violating individual rights. In practice, it centralizes power at the federal level and allows the Supreme Court to apply liberty-destroying decisions to the entire United States.
This case is a perfect example. Not only does the federal judge’s opinion uphold the Washington state law, but it also sets a precedent that other judges will follow in other states. And if the Supreme Court eventually affirms the opinion, it will be cemented as the law of the land. The centralizing nature of the incorporation doctrine ensured that bad precedent will be applied across the entire U.S.
So, why do so many liberty-minded people possess this impulse to centralize power? What drives their fixation on monopolizing decision-making at the highest level?
In a nutshell – power. They operate on the misguided notion that they can someday gain control of the levers of power and impose liberty top-down.
The problem is it almost never happens. Centralized government is antithetical to individual liberty. It will never care about you.
And you will never control it.
“But, what if the state courts get it wrong?” they plead. “State and local governments can be just as tyrannical as the federal government,” they insist. “Are you saying we just have to put up with state or local tyranny?”
Fair questions. State courts often do get it wrong. Washington state courts may well have upheld the new gun control just like the federal judge did. In practice, judicial branches of both state and federal governments typically side with the government when it comes to the extent of the government’s powers. But a bad outcome at the state level only applies to that state. A bad outcome at the Supreme Court ends up as a judicial precedent that applies all across the entire United States.
Centralizing government in the name of liberty will always fail in the long run.
You might get a few crumbs from the table now and then. The Supreme Court will occasionally issue an opinion that protects liberty in the short term. But most of the time, it will hand down garbage that empowers government at the expense of your rights.
Posted with permission from the Tenth Amendment Center.