{"id":117849,"date":"2026-07-16T16:59:34","date_gmt":"2026-07-16T21:59:34","guid":{"rendered":"https:\/\/milesfortis.com\/?p=117849"},"modified":"2026-07-16T17:01:54","modified_gmt":"2026-07-16T22:01:54","slug":"117849","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=117849","title":{"rendered":""},"content":{"rendered":"

Supreme Court Ducks the 1791 vs. 1868 Second Amendment Fight\u2014Again<\/a><\/p>\n

\u201cThe United States Supreme Court has now refused again to decide this big fight between when you interpret the Second Amendment, whether it\u2019s the year of our Lord 1791 when it was written, or is it 1868 after the Civil War, with the adoption of the 14th Amendment,\u201d constitutional attorney and host of\u00a0The Four Boxes Diner<\/em>\u00a0Mark W. Smith<\/a>\u00a0informed his followers Monday. \u201cAfter the Civil War, there were three constitutional amendments that were adopted to basically expand the Bill of Rights \u2026 to all Americans, not just as applied against the federal government, preventing the federal government from stopping you from exercising these rights, but also making sure that states and local governments could no longer impact or infringe on your rights as well.\u201d<\/p>\n

The technical holdup is essentially one of emphasizing due process and ignoring privileges and immunities, which to a layperson seems a bit like arguing how many angels can dance on the head of a pin. Legal precedents aside, there\u2019s a more basic argument: The Constitution and Bill of Rights were ratified based on the understanding of the people and their representatives with debates based on arguments posited in the Federalist and Anti-Federalist essays. There has never been a magic crystal ball that allows decisions to be based on what will happen in the future.<\/p>\n

And while it\u2019s inarguable that the Fourteenth Amendment mandates \u201cNo State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,\u201d another basic question needs to be explored:<\/p>\n

Would the Framers have thought it necessary?<\/h3>\n

\u201cThe Founders Intended for the Bill of Rights to Apply to the States<\/a>,\u201d Second Amendment writer Brian Puckett concluded back in 2001. \u201c[I]f we set aside any Supreme Court decisions relating to that matter, we are left with the writings of the Founders and \u2013 most important of all \u2013 the actual legal document they produced, the Constitution and its first ten Articles of Amendment.\u201d<\/p>\n

\u201cWho is this guy and what are his legal qualifications to make such an assertion?\u201d seems a legitimate question only if one ignores the arguments he makes and the questions he raises, which then makes such a challenge\u00a0ad hominem<\/em>, that is, a logical fallacy. What has to be refuted and dismissed are his assertions, not the man, and he offers some that naysayers need to refute, if they can.<\/p>\n

Proof of this understanding is contained in a passage from William Rawle. In his book\u00a0View of the Constitution<\/em>, published in 1829, Rawle wrote about the Second Amendment: \u201cNo clause in the Constitution could by any rule of construction be conceived to give the Congress a power to disarm the people. Such a flagitious attempt could only be made under a general pretence by a state legislature. But if in any pursuit of an inordinate power either should attempt it,\u00a0this amendment may be appealed to as a restraint on both.<\/strong>\u201d [emphasis added].<\/p>\n

In other words, Rawle says that the Second Amendment may be used as a legal argument to quash an attempt by either Congress or a state legislature to disarm the people.<\/p>\n

It cannot be any clearer that Rawle \u2013 a contemporary of the Founders and the man to whom George Washington offered an appointment as the first U.S. Attorney General \u2013 understood that the Second Amendment (and by extension the entire Bill of Rights) applied to the state governments as well as to the federal government. Keep in mind that\u00a0View of the Constitution<\/em>\u00a0was the standard constitutional law text at Harvard until 1845 and at Dartmouth until 1860.<\/strong><\/span><\/p><\/blockquote>\n

Rawle\u2019s was not the only voice.<\/h3>\n

\u201cThe man most involved in writing the Constitution, James Madison \u00a0[argued] for adding a national bill of rights by pointing out that some states have insufficient bills of rights,\u201d Puckett added. \u201cThe logical implication is that this national bill of rights will correct the problem of states that have insufficient bills of rights. Therefore, he is acknowledging that the national bill of rights will apply to the states.\u201d<\/p>\n

There\u2019s another historical\/legal example \u2013 from the Supreme Court \u2014 that predates the Fourteenth Amendment that must also be considered, and that was in\u00a0the Dredd Scott decision<\/a>, which noted:<\/p>\n

\u00a0\u201cIt would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished;<\/p>\n

and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs,\u00a0and to keep and carry arms wherever they went<\/strong>.\u201d\u00a0[Emphasis added]<\/em><\/p><\/blockquote>\n

Stipulating that I\u2019m not a lawyer versed in the intricacies of case law, just a citizen who somewhat knows how to read, I\u2019ve seen those who\u00a0are<\/em>\u00a0qualified admit\u00a0stare decisis \u00fcber alles<\/a><\/em>\u00a0may not be what the Founders intended, particularly when it comes to the Bill of Rights. So don\u2019t take this as a critique of \u00a0admittedly more formally educated Second Amendment scholars. I\u2019m not trying to start a fight.<\/p>\n

Consider it instead a hope that they\u2019ll add the Rawle, Madison, and Scott examples to the arguments they\u2019ll want the High Court to consider \u2013 or cogently explain to the rest of us why they\u2019re irrelevant in determining Founding intent.<\/p>\n","protected":false},"excerpt":{"rendered":"

Supreme Court Ducks the 1791 vs. 1868 Second Amendment Fight\u2014Again \u201cThe United States Supreme Court has now refused again to decide this big fight between when you interpret the Second Amendment, whether it\u2019s the year of our Lord 1791 when it was written, or is it 1868 after the Civil War, with the adoption of … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23,96,24,8],"tags":[],"class_list":["post-117849","post","type-post","status-publish","format-standard","hentry","category-courts","category-cowardice","category-rights","category-rkba"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/117849","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=117849"}],"version-history":[{"count":3,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/117849\/revisions"}],"predecessor-version":[{"id":117852,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/117849\/revisions\/117852"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=117849"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=117849"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=117849"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}