Can We Dispense With This “States Rights” Nonsense

I really only ever hear about “states rights” from history books, and when the media drags out the specter in an attempt to convince the American public there’s hypocrisy afoot. The term I often hear used by actual conservatives and libertarians is federalism, which is distinct from “states rights.”

For the most part, the media hasn’t been engaging in a whole lot of hysterics about the passage of HR822 in the house. The exceptions are in the anti-gun states like California and New Jersey. It shouldn’t be a surprise that we have two articles from those very places yammering on about states rights. First from New Jersey:

There is nothing in the Second Amendment prohibiting states from regulating who can carry a concealed weapon. That isn’t being debated. The issue is whether the gun regulations of one state must be recognized by another.

Funny, I thought the whole keep and bear part was pretty clear. It’s amazing such a simple phrase has been so twisted around by people who just don’t want to accept the plain language. Now the LA Times in California:

It’s no surprise that highly urban states susceptible to gang, drug and gun crimes tend to put more restrictions on firearms than more rural states. When the streets of cities such as Los Angeles, Long Beach and Oakland are flooded with guns and the blood of gun-violence victims, there is a strong public interest in regulating firearms, an interest that is far weaker in states such as Utah and Montana, where guns are used mainly for hunting and self-defense.

And guns aren’t used for self-defense in big cities? Just doesn’t happen, eh? States rights simply are not a concern here. The concern is the right of individuals to enjoy their fundamental right to have arms to protect themselves, both in and outside the home. States have no more a power to restrict that than they do to suggest out of state individuals obtain a publishing license before printing books, or have the power to demand whites and blacks drink from separate fountains, or use separate bathrooms.

14 thoughts on “Can We Dispense With This “States Rights” Nonsense”

  1. As I’ve been discussing this with friends and the usual suspects over at Volokh and elsewhere I was struck by something.

    AFAIK California and NJ really don’t have a lot more restrictions on actually carrying firearms (in terms of how you can carry and where) than a lot of shall-issue states, and this bill doesn’t change those regardless.

    The real distinction between states lies almost entirely in who can get the permit. Federal prohibited person laws on possession still apply so, regardless of their claims, it isn’t like there is a real difference in the legal baseline of who can carry “crime wise”.

    So the actual distinction is almost solely based on the philosophical acceptance of the idea that “self-defense”, without proof of particular need, is an valid reason to go armed in public. If a state accepts that they will be “shall-issue” in law or practice, if not, they won’t.

    In discussing this with less knowledgeable friends and family, or the undecided but leery online, boiling down the controversy to that key point can, I think help point up the fundamental injustice of leaving that decision in the arbitrary hands of “public officials”, as most people are very aware of the potential or actual corruption and favoritism of such officials in other areas of public interaction with government.

  2. The people that refuse to believe in the second amendment, are the same people that we had to force at gunpoint to let blacks go to school and give poor people fair trials.

  3. It is fascinating to think that these cowardly politicians believe that law abiding citizens from other states that have had and passed background checks, suffered through and passed government mandated training and joined the ranks of the most law abiding people in this country will come to their state and become bloodthirsty criminals.
    The truth is that the states with the most restrictive laws that prevent their honest citizens their right of self defense have the worst crime problems.
    Perhaps it is the time to replace the politicians & the laws that protect the criminals and disarm the citizens.

  4. States don’t have rights. CITIZENS DO.

    All H.R. 822 tries to do is protect the rights of citizens against infringements by the states. This is a legitimate role for the Federal Govt.

  5. I don’t think the 14th amendment was ever intended to go as far as it has in scope, but if we’re going to apply it as we have, it should be applied consistently. At least this time, Congress is applying its powers granted to it by section 5 of the 14th amendment, rather than the usual power grab by SCOTUS.

    1. I think the 14th Amendment, having read a lot of history surrounding it, was actually an incredibly radical amendment. Far more radical in the minds of its proponents than the courts ended up making it. It was, unfortunately, too radical for the courts at the time.

  6. Have you read both Michael Kent Curtis and Raoul Berger? Curtis takes your position, and Berger takes the more limited view. I personally feel that Berger is closer to the truth, and honestly would rather be on your side but just can’t get there after reading Berger’s work.

    1. If your read a lot of the amici in McDonald, I think Berger is wrong. I think the people who were behind the 14th Amendment were radicals. Even if you take a more conservative reading of the amendment, the RKBA of African Americans was in the forefront of people’s minds.

      1. Yeah, Sumner/Stevens/Bingham were radicals for their time. But so were the federalists at the constitutional convention. If you look at what powers Hamilton *really* wanted to the federal government to have, and what he *really* meant by terms such as “necessary and proper”, “general welfare”, and “commerce”, versus what he and other federalists assured everybody these terms did not mean, you will get my point.

        There were similar assurances given by proponents during the debates for the 14th amendment. And let’s not forget that it was ratified almost literally at gunpoint.

        All that aside, the 14th amendment is what it has become. And if we are going to use it as we do for freedom of speech, search and seizure, etc.., why not the RKBA as well?

  7. Let me see if I have this right. The “gun free” urban areas have through the roof crime and at the same time the guns in all hands rural and suburban areas have little crime. Know, I know it’s much deeper, but, maybe those smart urban people could learn a thing or two from the dumb farmers.

  8. When the streets of cities such as Los Angeles, Long Beach and Oakland are flooded with guns and the blood of gun-violence victims, there is a strong public interest in regulating firearms, an interest that is far weaker in states such as Utah and Montana, where guns are used mainly for hunting and self-defense.

    Yeah, that’s why progressive, urban areas ban guns and tiny backwater farming hamlets like Phoenix, DFW, Houston, New Orleans, St. Louis, Indianapolis, Nashville, Atlanta, Philadelphia, and Miami don’t.

    Of the nation’s ten largest Metropolitan Statistical Areas, only three (NYC, LA, Chicago,) are no-CCW.

    The DC and Boston MSA’s overlap Virginia and New Hampshire, respectively, and are thus balkanized on the matter.

    The remaining five (DFW, Philly, Houston, Miami, and Atlanta) are all in states with fairly liberal gun laws. The writer’s sniffily-typed comment about “urban areas” vs. “Utah and Montana” makes him look, not cosmopolitan, but terribly provincial, like the visitor to Indianapolis from NYC who brought apples and Saltines with him because he was afraid he wouldn’t be able to get them here.

  9. The NJ column, like some others, also uses the comparison to recognition of same-sex marriage to claim hypocrisy. That might not be a bad argument, except for two factors:

    The charge of hypocrisy only applies to SOME gunowner advocates. Many others such as Glenn Reynolds, Eugene Volokh, the Cato Institute (which brought and won the Heller case) also support recognition of same-sex marriage by all states.

    Also, the author of the NJ column might have a good point if he did not exhibit an equal amount of contradiction and hypocrisy.

    He seems to want all states to recognize same-sex marriage licenses but not recognize gun licenses. So he doesn’t want to eliminate contradiction and hypocrisy — he just wants to alter the positions so the contradiction and hypocrisy goes his way!

  10. No surprise here; that the liberal side would throw down states right card as soon as they might be force to show some respect for a fundamental right. This is the same gang that goes out and find the most liberal judge they can find to force their agenda in just one court. Once found, they have a state like Massachusetts pass gay marriage and then use it the force all of the other states to recognize it. While 41 state allow their citizens to carry plus a few shall issues and the hold outs scream STATES RIGHTS. Always seems to work one direction but not the other.

  11. The funny thing about the gun rights vs. gay marriage thing: the 10th Amendment clearly states that powers not reserved for the Federal Government, nor banned for the states are reserved for the States, and for the People. Marriage is one of those things. Arms, however, are covered by the Bill of Rights…and it’s a particular right that shall not be infringed.

    Personally, I oppose gay marriage on moral and family-structural grounds. Having said that, I also oppose State recognition of marriage. (Being a so-called “anarcho-capitalist”, I’d be a hypocrite if I didn’t! :-) If every couple setting down to get married had to adopt a contract that described the terms and conditions for the continuance of that relationship, and what would happen if the relationship were dissolved due to violations of those terms and conditions, I think marriage would be better off–even if people who aren’t supposed to get married–say, two men, or a brother and a sister–were to get married every now and then.

    As it stands, because of State interference, we have all sorts of problems: the State says who can and cannot visit us in hospitals; the State largely dictates what happens when a marriage is broken up (some laws are skewed heavily against the husband, who can have draconian child-support requirements placed upon him, and who is much less likely to obtain custody of the children, even in cases where the mother was the direct cause of the divorce through her misbehavior).

    Because of these interferences, the States have hurt the institution of marriage far more than the gay marriage issue ever will (as evil as I think that would be). We would be far better off if we took this power from the States, and claimed it for the People instead.

    Oh, I want to go on so many tangents in this comment! Now I want to go off on the injustice of tying Health Insurance to Employment, and thus to Family…what was this comment about again? That’s right! The power of the Federal Government to force States to recognize the Second Amendment!

    I apologize for the sort-of quasi-on-topic (if you cross your eyes and squint very hard) rant.

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