Bastardizing the Bill of Rights

On March 9, 2007 a federal appeals court overturned a ban on handguns imposed by the the city of Washington, D.C. They did so specifically based on the Second Amendment of the US Bill of Rights.

To say the least conservatives were thrilled while the “progressives” were livid.

Now for a moment lets moves to the First Amendment which guarantees freedom of speech and which established, as Jefferson put, a “wall of separation” between church and state, as Thomas Jefferson put it. The classical liberal founder of Rhode Island, Roger Williams, a Baptist minister, actually used the phrase many years earlier. And it may well be that Jefferson used the term intentionally because Baptists, at that time, were opponents of the merger of church and state and would recognize the phrase from their own history.

Now lets move forward to today and to the movement by the Theopublican right to redefine this separation of church and state to simply mean that the federal government, and only the federal government, is restricted from establishing or supporting a religion. These would-be theocrats argue that the states are exempt and that in the federal system the states are permitted to act where the federal government is restrained.

So where the federal government is not allowed to be involved in the promotion of religion directly or indirectly the state are not so restricted. For decades I have heard many conservatives argue this sort of interpretation of the Constitution when it comes to issues of religion.

But this is where I find their position confusing. The First Amendment does not apply to the states as the rights enumerated in the Bill of Rights are rights we protect from federal interference not from local or state interference. Yet at the same time the rights protected in the Second Amendment do apply to the states.

Either the Bill of Rights applies to the states or it doesn’t. You can’t coherently argue that one clause of the Bill of Rights applies while other clauses do not. Now I side with the mainstream view that the Bill of Rights applies to the states as well. I deviate somewhat from that view in that I think there is a good case to be made that Bill of Rights applied to the states even before that principle was made crystal clear with the passage of the 14th Amendment.

So I believe the Constitution does restrict the ability of the states to deny people Second Amendment rights. I also think the First Amendment forbids the states from restricting freedom of speech and from mingling church and state. Conservatives who want to commingle religion and government are not being consistent when they then apply the Second Amendment to state or local legislation. Conversely those on the Left who think the First Amendment applies today but not the Second Amendment are in the same boat.