In 1876, a full century after our Declaration of Independence, a unanimous Supreme Court made crystal clear that gun rights, much like marriage laws, were entirely under the control and purview of states: “The second amendment … means no more than it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government.” (See Cruikshank v. US.) This federalism enabled states to criminalize gun ownership and even Bowie knife ownership. For example, in 1983, the court left intact a Morton Grove, Illinois, municipal ordinance banning handgun possession. Federalism ensured that individual gun rights were never protected from state or municipal policies.

Repeatedly, as individuals attempted to gain any kind of rights, they were told that their concerns “posed no federal question” and their cases were dismissed.

Then, in 2010, five men, with the stroke of a pen, imposed their will on states, removing prerogatives states had over gun control since the nation’s inception.

There are parallels with gun rights and abortion rights:

• Initially, both rights were under the purview of the states, since no individual right is more deeply rooted in our history and tradition than states’ rights. In these two areas, individuals only enjoyed the rights granted by state authorities. There were no federally protected rights in either area, and this created a non-uniform patchwork of rights. In some states there were many rights, and some states few rights. States lost control over abortion in 1973 (Roe v. Wade) and guns in 2010 (McDonald v. Chicago).
• Both rights were created by the federal judiciary using the 14th Amendment, which was adopted in 1868. Without the 14th Amendment, it would have been impossible to create abortion or gun rights.
• The creation of both rights relied on an approach that views the Constitution as a “living document”; that is, it creates rights from writings that were not intended by the authors at the time of the writing.
• Both Roe and McDonald overturned legal precedents which had existed since our nation’s inception.
• In Roe, the dissenters claimed that the 14th Amendment could not be used to create abortion rights since many of the states which ratified it had strict laws against abortion, indicating they never would have ratified it if they knew it reduced their prerogatives. By this logic, the 14th Amendment cannot be used to create gun rights since many of the states that ratified it had very restrictive gun laws showing that they never envisioned that amendment creating gun rights and reducing their state prerogatives.
• If there was a universal, across-the-board reversion to federalism by the judiciary, the McDonald decision would be reversed and gun control returned to states. This would allow states and municipalities to again criminalize gun ownership, just as the decision which overturned Roe (Dobbs v. Jackson) returned abortion rights to the states, allowing them to criminalize abortion.

Why are those who have weaponized federalism to control women’s health unaware federalism could be used to greatly restrict gun rights? Why is it that returning abortion rights to the states is labeled “conservative” by the media, but returning gun rights to the states, where they were throughout the 1700s, 1800s and 1900s, would not be “conservative”?

The facts suggest it’s not just the politicians who are ignorant of federalism, but the media also.

Rick Jones is a retired adjunct teacher of economics from Weber State.