States Rights and Guns



Guns and the Government

by
Andrew P. Napolitano

Recently
by Andrew P. Napolitano: Guns
and Freedom



If you have
listened to President Obama and Vice President Biden talk about
guns in the past month, you have heard them express a decided commitment
to use the powers of the federal government to maintain safety in
the United States. You also have heard congressional voices from
politicians in both parties condemning violence and promising to
do something about it. This sounds very caring and inside the wheelhouse
of what we hire and pay the federal government to do.

But it is clearly
unconstitutional.

When the Founders
created the American republic, they did so by inducing constitutional
conventions in each of the original 13 states to ratify the new
Constitution. The idea they presented, and the thesis accepted by
those ratifying conventions, was that the states are sovereign;
they derive their powers from the people who live there. The purpose
of the Constitution was to create a federal government of limited
powers – powers that had been delegated to it by the states. The
opening line of the Constitution contains a serious typographical
error: “We the People” should read “We the States.”
As President Ronald Reagan reminded us in his first inaugural address,
the states created the federal government and not the other way
around.

Notwithstanding
the Constitution’s typo, the states delegated only 16 unique, discrete
powers to the new federal government, and all of those powers concern
nationhood. The Constitution authorizes the feds to regulate in
areas of national defense, foreign affairs, keeping interstate commerce
regular, establishing a post office, protecting patents and artistic
creations, and keeping the nation free. The areas of health, safety,
welfare and morality were not delegated to the feds and were retained
by the States.

How do we know
that? We know it from the language in the Constitution itself and
from the records of the debates in the state ratifying conventions.
The small-government types, who warned at these conventions that
the Constitution was creating a behemoth central government not
unlike the one in Great Britain from which they had all just seceded,
were assured that the unique separation of powers between the states
and the new limited federal government would guarantee that power
could not become concentrated in the central government.

It was articulated
even by the big-government types in the late 18th century – such
as George Washington and Alexander Hamilton – as well as by the
small-government types – such as Thomas Jefferson and James Madison
– that the new government was limited to the powers delegated to
it by the states and the states retained the governmental powers
that they did not delegate away. At Jefferson’s insistence, the
Bill of Rights was added to the Constitution to keep the new government
from interfering with natural rights such as speech, worship, self-defense,
privacy and property rights, and the 10th Amendment was included
to assure that the Constitution itself would proclaim affirmatively
that the powers not delegated to the feds were retained by the states
or the people.

The Supreme
Court has ruled consistently and countless times that the “police
power,” that is, the power to regulate for health, safety,
welfare and morality, continues to be reposed in the states, and
that there is no federal police power. All of this is consistent
with the philosophical principle of “subsidiarity,” famously
articulated by St. Thomas Aquinas. Aquinas argued that the problems
that are closest to the people needing government intervention should
be addressed by the government closest to those people. Its corollary
is that all governmental intervention should be the minimum needed.

Now, back to
Obama and Biden and their colleagues in the government. If the feds
have no legitimate role in maintaining safety, why are they getting
involved in the current debate over guns? We know that they don’t
trust individuals to address their own needs, from food to health
to safety, and they think – the Constitution to the contrary notwithstanding
– that they know better than we do how to care for ourselves. Obama
and Biden and many of their colleagues in government are the same
folks who gave us Obamacare, with its mandates, invasions of privacy,
increased costs and federal regulation of health care. They call
themselves progressives, as they believe that the federal government
possesses unlimited powers and can do whatever those who
run it want it to do, except that which is expressly prohibited.

This brings
us back to guns. The Constitution expressly prohibits all governments
from infringing upon the right of the people to keep and bear arms.
This permits us to defend ourselves when the police can’t or won’t,
and it permits a residue of firepower in the hands of the people
with which to stop any tyrant who might try to infringe upon our
natural rights, and it will give second thoughts to anyone thinking
about tyranny.

The country
is ablaze with passionate debate about guns, and the government
is determined to do something about it. Debate over public policy
is good for freedom. But the progressives want to use the debate
to justify the coercive power of the government to infringe upon
the rights of law-abiding folks because of what some crazies among
us have done. We must not permit this to happen.

The whole purpose
of the Constitution is to insulate personal freedom from the lust
for power of those in government and from the passions of the people
who sent them there.

Reprinted
with the author’s permission.

January 17, 2013

Andrew P.
Napolitano [send
him mail
], a former judge of the Superior Court of New Jersey,
is the senior judicial analyst at Fox News Channel. Judge Napolitano
has written seven books on the U.S. Constitution. The most recent
is
Theodore
and Woodrow: How Two American Presidents Destroyed Constitutional
Freedom
. To find out more about Judge Napolitano and to read
features by other Creators Syndicate writers and cartoonists, visit
creators.com.

Copyright
© 2013 Andrew P. Napolitano

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