GOAL's argument for incorporation of the 2nd Amendment.

Massachusetts Attorney General and District Attorneys Argue to Block Bill of Rights

Recently the Massachusetts Attorney General filed what is called an Amici Curiae (friend of the court brief) in the case of Commonwealth v. Richard Runyan. The brief is signed on to by a host of district attorneys and state officials. This is a case that is going before the Massachusetts Supreme Judicial Court regarding the Massachusetts firearm storage laws. In typical fashion of what we have come to expect of our state officials, the brief is full of support for state restrictions on innocent lawful citizens and an outright objection that the Second Amendment applies to the states.

One of the arguments from state officials is that the Supreme Court of the United States (SCOTUS) has never incorporated the Second Amendment through the Fourteenth Amendment (adopted in 1868) thus the states are free to abuse their citizens as they see fit.

For those who are not aware of what “incorporation” refers to, it refers to the process by which the Bill of Rights is applied to the states through what is called the “Due Process Clause” of the Fourteenth Amendment.

Throughout history the Bill of Rights has been incrementally incorporated. In other words, the entire Bill of Rights has not yet been established as protecting citizens against state governments. In fact it was years, even decades, after the Fourteenth Amendment before citizen’s civil rights were being protected from state governments. This history lesson is critical when reading the arguments of state officials who still wish to trample on the civil rights of lawful citizens.

In Attorney General Martha Coakley’s Amicus Brief she, like so many before, selectively chose to use ancient Supreme Court rulings in arguing against civil rights. As in so many writings of officials who attempt to subdue Second Amendment rights, she uses two well known cases as examples. In her brief she states: “For over 120 years it has been established that the Second Amendment is not incorporated through the Fourteenth Amendment and, thus, does not restrict the authority of the states to regulate firearms.”
It is important to keep in mind that the Bill of Rights was never about regulations. It was about protecting the sacred civil rights of every lawful citizen of United States. So, when state officials argue that certain rights have not been incorporated, what they are actually telling us is that lawful citizens have no federal protection from state official’s tyrannical actions against our civil rights. That is truly the core of the incorporation argument.

The two cases that are continually used to argue the preservation of certain state tyranny in regards to the Second Amendment are United States v. Cruikshank (1876) and Presser v. Illinois (1886). Both cases ruled that in spite of the Fourteenth Amendment passed years before that the Bill of Rights did not apply to the state governments. Specifically, in the Attorney General’s brief, she uses a quote from Cruikshank that regards the Second Amendment as a “means no more than that it shall not be infringed by congress, and has no other effect than to restrict the powers of the National government.” What the Attorney General, and many before her, continually fail to mention is that this same case ruled against the First Amendment right to assembly. The Cruikshank ruling stated that the First "was not intended to limit the powers of the State governments in respect to their own citizens." In fact the right to assembly under the First Amendment was not incorporated until 1937 nearly seven decades after the Fourteenth Amendment was adopted.

In doing some research on the subject, I came across a Wikipedia article on the case, it can be found at: en.wikipedia.org/wiki/United_States_v._Cruikshank

Rather than defend the decision, as does our Attorney General and other public officials, the article actually stated that because of the decision: “In the short term, blacks in the south were left to the mercy of increasingly hostile state governments who did little to protect them. When Democrats regained power in the late 1870’s, they passed legislation (state) making voter registration and elections more complicated, effectively stripping blacks from voter rolls.”

I urge everyone to do a web search on Cruikshank and you will find article after article that blames the decision for the disarming and disenfranchisement of African Americans.

Is this the type of decision that our state officials should be using to defend their position on gun control? Would these state officials still defend the entire decision? If a public official is going to use rulings like Cruikshank to support their policy positions, then they must be held as supporting the entire decision and the consequences of it!

As a further example of how ridiculous it is use to use late 1800’s decision in defending an anti-civil rights policy decision, we must look at how long it took SCOTUS to officially incorporate other parts of the Bill of Rights. Here is a short list of some of our civil rights we take for granted and the year in which they were incorporated:

First Amendment
Freedom of Religion 1940
Freedom of Speech 1925
Freedom of the Press 1931
Freedom of Assembly 1937

Third Amendment (Quartering of Soldiers in Private Homes)
Has NOT been incorporated.
Fourth Amendment
Unreasonable Search and Seizure 1961 (Had been ruled to not be incorporated as late as 1949.)
Fifth Amendment
Double Jeopardy 1969
Self Incrimination 1964
Sixth Amendment
Speedy Trial 1967
Public Trial 1948
Trial by Impartial Jury 1971
Right to Council 1963
Eighth Amendment
Protection Against Excessive Bail 1982

And it goes on. How many people actually know that the 1970’s Equal Rights Amendment (ERA) never made it to the Bill of Rights because the states failed to ratify it? If our Attorney General and other state officials stand behind their argument, then they certainly wouldn’t support any of the issues in the ERA since it was never even ratified.

If we are to logically apply the Attorney General’s use of Presser and Cruikshank should we soon expect that Massachusetts will begin quartering National Guard persons in our homes because the Third Amendment has not been incorporated? Also lest we forget, that a woman’s right to vote (Nineteenth Amendment) was not part of the Bill of Rights until 1920.

The history lesson here is that it took nearly a century after Fourteenth Amendment for SCOTUS to officially recognize most of our civil rights as protecting us from our own state governments. The certainty is that one by one SCOTUS has in fact given protection to citizens from their own state governments. For sure the court has been painstakingly slow and very deliberate, but it has done it. To use 120 year old anti-civil rights case law to defend a draconian position on gun control speaks volumes about those who support such stances.

Why is this history lesson of incorporation so important? Simply put, every citizen should keep the following in mind. Any person, and especially public officials, that use the incorporation argument to defend a policy position is in fact defending that position via the exclusion of the Bill of Rights. Clearly stated, the people using that argument are in fact supporting a position to keep the Bill of Rights from applying to the citizens of the states. By fighting to keep the Bill of Rights from applying to certain citizens can only mean they are anti-civil rights activists.

For years, I have told our members that the people fighting against our Second Amendment Rights are not anti-gun, but in fact are anti-civil rights extremists. The fairly new incorporation argument against the Bill of Rights, and especially the Second Amendment, has proven that I was correct. The people supporting this argument can try to spin it anyway they want, but the plain fact is that anyone who fights against incorporation itself or uses the incorporation argument against certain rights is in fact anti-civil rights.
Sadly, we can count among the anti-civil rights activists those public officials that have signed on to the Runyan Amicus Brief. If the signers object to being honestly labeled, perhaps they should be more aware of what they sign their names to.

They are:
Massachusetts Attorney General Martha Coakley
Berkshire District Attorney David Capeless
Bristol County District Attorney C. Samuel Sutter
Cape & Islands District Attorney Michael O’Keefe
Essex County District Attorney Jonathan Blodgett
Hampden County District Attorney William Bennett
Middle District Attorney Joseph Early
Norfolk District Attorney William Keating
Northwestern District Attorney Elizabeth Scheibel
Plymouth District Attorney Timothy Cruz
Suffolk District Attorney Daniel Conley
The Massachusetts Executive Office of Public Safety and Security
The Massachusetts Executive Office of Health and Human Services
The Massachusetts Department of Public Health

More articles on Cruiksank:
U.S. v. Cruikshank: 1875 - Southern Racism Makes A Comeback

U.S. v. Cruikshank: 1875 - Supreme Court Delivers A Crushing Blow

United States v. Cruikshank


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  • 10/2/2009 10:53 AM Ken Griffin wrote:
    The problem is the supreme law of the land is the decision of the U.S. Supreme Court and until those decisions refusing to incorporate the 2nd Amendment into the protections afforded by the 14th, we need a U.S. Supreme Court decision making that incorporation. After all, all Judges and elected officials take an oath to uphold the U.S. Constitution and what the U.S. Supreme Court says is the law until it changes its mind. Sorry but that is how Constitutional Law must work for the USA to be a country governed by "the rule of law." How about we get the NRA to get the US Supreme Court to incorporate the 2nd into the 14th. While we are at it, now that we have the Heller decision that forbids the Federal Government from infringing upon our individual right to keep and bear arms, how about getting rid of all those unconstitutional Federal firearms laws and regulations - yes, ever last single one of them.
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  • 10/3/2009 1:14 PM Obie wrote:
    I've always found it ironic how the first Amendment could be incorporated at all, considering the language it begins with "Congress shall make no law..." would seem to infinately restrict it to the the federal government, yet the Second Amendment with no such provision is continuously interpreted as applying to the federal government only.
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  • 10/28/2009 5:38 AM Conant Webb wrote:
    Links to the briefs would be good.

    The whole selective incorporation doctrine makes little sense to me in light of the language of the 14th Amendment.

    There's also the issue of the plain language of the Massachusetts Constitution, but while the Massachusetts courts bend over backwards to release violent sex offenders, it seems expedient to trample the rights of ordinary law abiding citizens.

    See links below.

    GOALS Amicus Brief

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  • 10/28/2009 8:04 PM Tom Crosby wrote:
    I do not understand how this can be an argument in Massachusetts which has an article in it's own Constitution which says

    "Art. XVII. The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority and be governed by it."

    As I understand it the Constitutional law the constitution is higher that any other law is Massachusetts. The only laws higher would be a US Treaty and the US Constitution. I understand this is a Federal case based politics but still it seems silly given the MA constitution which would seem to prevent most of the gun laws we have on the books now.
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  • 12/11/2009 11:10 AM L Roberts wrote:
    The 14th Amendment states that "all persons born or naturalized in the US, and subject to the jurisdiction thereof are citizens of the US AND the State wherein they reside." Then the amendment goes on further to declare that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US......due process, etc. What is unclear about that?

    Also, did you know there is a preamble to the Bill of Rights? It is interesting that 99.9% of modern constitution publications omit it. (not an oversight in my opinion.) Several of the states were very concerned that the new Constitution doesn't protect the people's right enough. The preamble to the Bill of Rights explains that the Bill of Rights was created to further clarify/protect rights THE CITIZENS ALREADY HAD!

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  • 1/15/2010 5:26 AM software developer wrote:
    Humm... interesting,
    Nice information about the argument against the bill of rights,
    Thanks for writing about it
    Reply to this
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