Gutzman Interview Pt. I: Incorporation of 1st and 2nd Amendment is for Progressive Losers

Editor’s NOTE: This story was originally Published on: Feb 14, 2014

Mandeville, LA – Exclusive Transcript – “The lunatics from the Westboro Baptist Church were threatening to go protest and disrupt these people’s grieving ceremonies and funerals.  Again, the incorporation doctrine would prevent the City of Newtown from calling an ad hoc meeting of their council and passing an ordinance that said you can’t, and if you do we’re going to have our police chief arrest you.  Of course, some ACLU lawyer or someone is going to jump in there and sue and say the First Amendment says they have the right.  We already have a Supreme Court case on that.  No, Newtown, you can’t ban speech in your city.  Sans the incorporation doctrine, Newtown absolutely could.  Not only could they do it, but they could enforce it against the Phelpses and make them spend time in jail if they wanted to, if that’s what the law said, they could fine them, whatever the case may be.” Check out the rest in today’s transcript…

 First Published on: Dec 20, 2012

Begin Mike Church Show Transcript

Mike:  You and I, old friend, have been discussing for about four years now this wrath of cases that have been going through the courts, one being the Heller v. DC, the other being McDonald v. Chicago, I believe.

Kevin Gutzman:  Right.

Mike:  In both those cases, the NRA was filing amicus briefs.  They were arguing on behalf of incorporating the Second Amendment, in the first instance for use against the District of Columbia, and in the second for use against the City of Chicago.  In the last instance, for using the Second Amendment for use against the State of Illinois for the conceal carry permit.  They’ve gotten their way.  The Second Amendment is now, for all practical intents and purposes, incorporated.  I’ll let Kevin explain what that means.  Now, just as you and I predicted, lamented, and begged and pleaded for people to not give their approbation to, now the Congress sits exactly where we predicted they would.  Now the Congress will be the supreme legislature to decide all cases arising under the Second Amendment, which will now cover all gun ownership, gun purchasing, gun handling, where you can have them, where you can’t, what kind you can, what kind you cannot, where you may have them.  You name it and now Congress is going to claim supremacy in all instances.  Just a mere ten years ago, that was not the case.  Thanks to the NRA, among others, that is now going to be the case, isn’t it?

Gutzman:  It’s not only true that now the federal government is going to be supervising everything to do with gun ownership, but it’s also — this is the main point for me — it’s also totally inconsistent with the Constitution.  This incorporation doctrine is the idea that, although as Chief Justice Marshall and the unanimous court said in 1833 in Barron v. Baltimore, and as the preamble to the Bill of Rights said, the Bill of Rights was intended as a limitation on the federal government, not a limitation on state governments.  It was intended to keep the federal government out of questions like who owns guns.

The 14th Amendment, according to federal courts, beginning in the second decade of the 20th century, made various provisions of the Bill of Rights enforceable by federal courts against state governments.  This is nonsense.  Nobody believed it in the 19th century.  We can find that that’s true by looking at the fact that soon after the 14th Amendment was adopted, they had debates in Congress over the question whether there should be a constitutional amendment to make the principle of separation of church and state enforceable against the federal government.  That is, after the 14th Amendment was adopted, Congress adopted lots of time to considering the question: Should they amend the Constitution to make the principle of separation of church and state enforceable against the federal government.

The reason that’s significant is, if the 14th Amendment had been intended to make the Bill of Rights first a provision that is enforceable against the federal government, there wouldn’t have needed to be another amendment to make the establishment clause enforceable against the federal government.  It already would have been but it wasn’t.  Nobody said we already have incorporation, and the reason they didn’t say that is because they didn’t.  This idea of incorporating the Bill of Rights, or parts of it anyway, into the due process clause of the 14th Amendment was cooked up in the second decade of the 20th century.  It has nothing to do with what the people ratified in the 19th century.  What we end up with here is a bogus application of some idea of a right to gun ownership made up by federal judges, by federal judges, against local and state governments.  Of course, what that means is you can’t control what the rules are going to be because we don’t get to vote on who the federal judges are.  We don’t ever get to have any say in deciding what the policies are going to be.

My own feeling is that a complete and utter gun ban is a very bad policy.  If Chicago wants to have the highest crime rate in Illinois, fine, it’s up to them.  It’s their city.  I don’t live there; I’m not going there.  It’s possible that people who have suffered under that will then go out and campaign and try to persuade their fellow Illinoisans that maybe they should repeal that policy.  If you find that the policy that’s imposed on you by the Supreme Court is a bad policy, then, as Thomas Jefferson said on a memorable occasion, your only option is to pray for the speedy death of members of the Supreme Court.  You can’t vote them out.  This is the wages of the sin of incorporation.  It’s a totally bogus, non-historical argument that they foist upon you in constitutional law classes because constitutional law is just reading what the judges said.  What they say is that the due process clause of the 14th Amendment makes these provisions enforceable against the states.

Mike:  Professor Kevin Gutzman, author of James Madison and the Making of America is on the Dude Maker Hotline with us.  Kevin, that’s a point of view that I promote and find myself in conversation with on this show often.  In the last two weeks, it’s come up with the Illinois conceal carry case.  Of course, as you famously are now tagged in our mutual friend Bill Evelyn’s emails, it is always hard to educate anyone to believe that there are some instances in which the U.S. Constitution, correctly read, does not yield the outcome they prefer.  This incorporation of the Second Amendment is the prima facie evidence of that doctrine.

Not only that, I continue to be amazed.  I am so impressed and amazed by the successful propaganda campaign that has been waged.  You can present all of the evidence that you and I wish to present.  It doesn’t matter.  You’re going to have NRA members and you’re going to have people that listen to shows like this.  They’re going to call up and call you and I socialist gun grabbers and we don’t know what the hell we’re talking about.  That’s not true.  The word “state” is in the Second Amendment, so of course it applied against the states.  Of course, we’ll get called imbeciles and know-nothings and what have you.  I just continue to be amazed, befuddled by people’s insistence that this is the way it always has been and the way it should be, that it’s a universal right.

What they don’t seem to comprehend — again, this is just a testament to the propaganda that comes out of places like the NRA and the John Birch Society.  What they don’t seem to comprehend is, as you said, if you make this amendment incorporated, if you trade your ability to have control over your neighborhood, your county, your town or your state and how you want to administer firearms — maybe you want to have semi-automatic weapons.  That’s your business.  Maybe you want to have tanks.  That’s your business.  Once you trade that, now it all gets heard in the federal legislature.  When they pass a one-size-fits-all bill aimed at a lunatic in Connecticut, everyone else now has to live under it, right?

Gutzman:  That’s exactly right.  It’s very frustrating because the idea that if you say there’s not a federal gun right enforceable against state governments you must be a gun grabber shows that even people that think of themselves as conservative are really buying into the progressive idea that’s been sold by federal judges beginning in the second decade of the 20th century, that ultimately all power is in the central government.  This is not the American model.  Yeah, it’s frustrating.  I hear it all the time, too, but the fact that the Bill of Rights is enforceable only against the federal government, again, was part of the preamble to the Bill of Rights.  Chief Justice Marshall said so in Barron v. Baltimore.  The due process clause of the 14th Amendment says that no person may be denied of life, liberty or property without due process of law.  That is no person may be executed, jailed, or fined without due process of law.  This has nothing to do with having your guns regulated by the state government.  It has nothing to do with that.

You mentioned the Heller and McDonald cases earlier on in our conversation.  I was actually asked to sign an amicus brief in the Heller case, and I said no I will not because I don’t believe in the incorporation doctrine.  People should recognize that this incorporation doctrine is not some rhetorical device; it’s the idea that the federal courts have used to legalize abortions, legalize flag burning, to say you have a constitutional right in America to rape a child and not get the death penalty for it.  Basically every offensive ban, banning prayer in schools, basically every offensive idea that’s been foisted upon us by the federal courts have been foisted upon us through the incorporation doctrine.  So you want to endorse it now?  Basically what you’re saying is I favor every ultra-left wing idea in the world except for gun banning.  That’s what you have to do if you endorse the incorporation doctrine.

Mike:  You’re a citizen of the State of Connecticut.  You live nearby Newtown.

Gutzman:  Newtown is adjacent to my town.  I live in Bethel, the next town over.  I have friends there.  I have a colleague whose daughter was killed.  I know somebody else who had a relative who was one of the teachers there.  My daughters played soccer in Newtown.  They used to go get their hair done in Newtown.  I have friends there.  It’s basically right next door.

Mike:  The reason I bring that up is because the lunatics from the Westboro Baptist Church were threatening to go protest and disrupt these people’s grieving ceremonies and funerals.  Again, the incorporation doctrine would prevent the City of Newtown from calling an ad hoc meeting of their council and passing an ordinance that said you can’t, and if you do we’re going to have our police chief arrest you.  Of course, some ACLU lawyer or someone is going to jump in there and sue and say the First Amendment says they have the right.  We already have a Supreme Court case on that.  No, Newtown, you can’t ban speech in your city.  Sans the incorporation doctrine, Newtown absolutely could.  Not only could they do it, but they could enforce it against the Phelpses and make them spend time in jail if they wanted to, if that’s what the law said, they could fine them, whatever the case may be, right?

 

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Gutzman:  You are exactly right.  Yes, the reason why those people from Westboro Baptist Church are going to be trying to harass the families of the people who were killed in Newtown at Sandy Hook Elementary School — by the way, Sandy Hook is the neighborhood where my daughter used to take music lessons.  The reason why the city can’t do anything to keep those people from coming and spreading their asinine pseudo-Christianity is the incorporation doctrine.  Again, if you want to favor this bogus judicial invention of the second decade of the 20th century, that’s what you get.  You get a million abortions a year.  You get the Westboro Baptist Church harassing people in Newtown.  You get the federal Supreme Court deciding what your gun rights are.  That’s a great package.  It’s not only bogus but it’s totally undesirable.

End Mike Church Show Transcript