A glorious Jeffersonian State Supreme Court Opinion

People ask me what my political leanings are, usually trying to pigeon hole me on whether I am a Republican or a Democrat. I have, at various times, been registered as a Democrat, Republican, Independent, and Libertarian. I am really do not fit cleaning into any of those 21st Century political categories. I will say I am currently registered as a member of one of the major parties, but only so as I can vote in the primary in my state. My state has such a late primary (not the very last, but close to it), there really is not much point to it on the Federal level as Federal candidates have usually pretty much already coalesced by the time my state's primary comes around, but I can at least have a say in state and local election primaries, which is really about the only thing I care about anyway.

So, to the original topic of "what am I?" I am a leftover Jeffersonian agrarian. I believe in Jefferson's idea of republican democracy. I believe in Federalism in the true sense of the original meaning. The Federal government serves at the pleasure of the States, not vice versa. The States, at least the original former colonies, existed before the Federal Government. According to the Constitution, the States can theoretically alter or even dissolve the Federal Government, but the Federal Government cannot unilaterally dissolve a state. 

Basic American civics classes usually (and incorrectly) teach students that there are three levels of the Federal government listed in the US Constitution: the Legislative (Congress, the Executive (The President and his cabinet), and the Courts. While there are those three branches, there is a 4th that the Constitution talks about at some length as well: the States. This is a very crucial and often overlooked branch of the American government system.

The US Constitution only the central Government roughly 30 powers (a few can be subdivided up, depending on how you want to rhetorically classify certain powers and split definitional hairs) directly to the Federal government. All other powers are reserved to the States and to the people. The Constitution says this both implicitly and explicitly, namely in the 10th Amendment, the last of the so called Bill of Rights.

The ultimate down fall of true Federalism was woven into the wording of that 10th Amendment, which reads:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

While that seems as clear as crystal, the downfall came in the fact that the 10th Amendment lacked any specific enforcement power language. Virtually all the founding generation of legislators and "Founding Fathers" believed in State sovereignty. Some wanted to expand the 30 powers given the central government in the Constitution, but virtually everyone feared a centralized controlling national government. Thomas Jefferson, himself, had to dicker with Congress for over two years, to allocate funding for a single warship to fight off the Tripoli pirates who were harassing American ships and taking American hostages in the Mediterranean in the early 1800s. No one, North or South, wanted to fund a single warship that would be under the control of a centralized Government without an actual Congressional declaration of war. 

In an American Federal government landscape nowadays that is behooven to the military industrial complex, the US will drop a billion dollars (That's $1,000,000,000,000 in actual zeroes) on a single F-22 fighter plane without batting an eye, the fact that you had a Congress that could not agree on virtually anything other than not funding a Navy ship beggars belief. But, such was the fear of the founding generation of Americans who had fought and won a long, hard war against the British. Keep in mind, this is only a few short years after Alexander Hamilton ran the entire US Department of the Treasury with two other employees for almost 8 years, one of whom was only a part time employee. Imagine a major Federal department that had only 3 employees for 8 years! 

So, imagine to my surprise, reading the opinion of the Hawaii State Supreme Court that was issued February 7th, 2024. It created wailing and gnashing of teeth of so-called modern Conservatives in the US because it basically told the US Supreme Court to take its creeping doctrine of the incorporation of the Bill of Rights (in this case the 2nd Amendment right to bear arms) to the States and take a hike.

What exactly is the incorporation of the Bill of Rights to the States and why is this case noteworthy? Over the last 130 years or so, really beginning with the aftermath of the Civil War amendments, the Courts have gradually, when given the chance, incorporated the Bill of Rights amendments to the States. In other words, expanding both the language and intent of the first 8 amendments to individual States. But this is an unconstitutional application. The Bill of Rights begins with "Congress shall make no law..." The Bill of Rights limits the power of the central Federal Government. Indeed, the entire US Constitution is a limit on Federal power, giving it only 30 powers with everything else reserved to the States and their own respective Constitutions.

The Bill of Rights applies only to the Federal government. Nowhere in the Constitution does it give the central Federal government to power to apply those limits on individual states. The right to freedom of speech extends only to the Federal government. The same is true with any other Amendment in the Bill of Rights. Local State Constitutions and laws are designed to protect individual liberties on the State level. Federalism and local control by States is designed to make the Union of States feasible and cut down on the culture war issues. That's the point. If Alabama wants to ban abortion, they can do so. If California wants to allow abortion up to the 3rd trimester, it can do so. States were to be the locus of sovereign and rights, not the Federal government. The Federal government served at the pleasure of the States, not vice versa.

This ruling by the Hawaii Supreme Court is a marvelous legal analysis telling the Federal Government Supreme Court to take it's 2nd Amendment "everyone has a right to carry arms anywhere" Federal dictatorial control and stuff it. The 2nd Amendment only applies as a limit to the Federal government, as does any other amendment. If Hawaii wants to ban guns by its own Constitution, by all means, let them do so. If Tennessee wants to let people drive down the street with their own tanks, let them do so. That is the essence of the true right of States. That was how the Federal system was designed to work to keep the peace between the States. If you don't like what Hawaii is doing, move to some state that shares your values and ideals. That was the whole point.