When Ronald Reagan proclaimed in his first inaugural “We are a nation that has a government—not the other way around,” he was not taking off on some libertarian tangent or making an obscure philosophical point. He was following in the footsteps of the Founding Fathers who erected a frame of government that began with the words “We the People.” He was also trying to return government to its important but limited role in people’s lives—a role that both political leaders and the people understood until 1912 but has been mostly misunderstood and abandoned since then. At Philadelphia in 1787, the Framers of the Constitution created a national government that would be effective—even energetic—in its functions but also limited to those functions. The people were to be the ultimate guardians of both the effectiveness and limitations of government. The only way such a republic—unprecedented in modern history—could work would be if the people acted as a vigilant and constitutionally-minded sovereign jealous of their rights.

The authority of the people is made clear in at least three respects in the Constitution, and their vitality is powerfully suggested in a fourth. First, the Constitution holds both the lawmakers and the executive accountable to the people through elections, whether direct or indirect. The foremost depository of the people’s will is obviously the House of Representatives, whose members are directly elected every two years. According to James Madison writing in The Federalist, every constitution is designed to find rulers with the wisdom and virtue to pursue the common good and to make sure those rulers remain virtuous while holding the public trust. Elections are the means to both of those ends. In other words, if those in office lose their virtue, they can be thrown out of office by the people through regular elections. The people are the true source of term limits.

Second, the Constitution embraces, indeed creates, the system known as federalism. Not only can the people exert their authority through elections at the federal (national) level, they can also throw their support behind the state governments against federal encroachment. The chief means of doing so in the original Constitution was through the Senate, whose members were elected by state legislatures. Indeed, the Framers of the Constitution originally thought that the people’s loyalties would lie overwhelmingly with the states, not the remote national government. Their opinion owed to the history of the Revolution—in which the states were extremely jealous of their powers; the confidence that men of great talents and ambitions at the national level would devote their energies to the high pursuits of “commerce, finance, negotiation, and war,” to quote Hamilton in The Federalist, not with local concerns; and the general tendency of human nature to prefer the things closest to us. (Not many people living in Dallas root for the Steelers.) To this end, should the national government extend its powers beyond those enumerated in Article I, section 8, the Senators—whose loyalties lie, and whose careers are made, not in the national capital but in the state capitals—would defend the prerogative of the states and thereby the liberties of the people.

Third, for the Constitution to be adopted, it was imperative that the first Congress adopt a Bill of Rights to be appended to it. The Bill of Rights, authored mostly by Madison, was meant to serve as an education to the people in what their rights are and an encouragement to them to guard those rights jealously. It is also abundantly clear what would be the greatest threat to their rights. The Bill of Rights begins with the words “Congress shall make no law respecting” and ends with the words “or to the people.” That is, the greatest threat to liberty would come from government—though republican—exceeding its constituted authority and encroaching on the rights of the people.

Finally, there is the latent suggestion in the Constitution that the people will be doing the vast majority of the work in civil society, and the government will be needed chiefly to establish the rule of law, to protect the society from internal and external enemies, and to set up a system of uniform commercial exchange.

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With the dust largely settled from the November 2010 elections, it is resoundingly clear that the majority of Americans are fed up with a government that has grown drunk on its own power and fat on their tax dollars. Tired of waiting for those in office to do the right thing, they took action and chose a different kind of leader to represent them.

The sentiment that drove voters is the heartbeat of my book, Fed Up! Our Fight to Save America from Washington. In addition to pointing out where and how government has overflowed its boundaries, it explains how liberty is maximized by a limited government set closest to the people.

As a life-long conservative, I was more than pleased at the outcome of the 2010 elections, because I sense people reconnecting with the fundamental precepts of our republic, enunciated so clearly in the U.S. Constitution. As a governor, I’m particularly fond of the Tenth Amendment, and the narrow role it casts for the federal government.

Its key phrase reads…“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.”

The Bill of Rights’ authors had seen the oppressive effect of a distant, centralized government, while the rugged vitality of the American colonies showed that government closest to the people truly governs best. In short, free people work harder, live better and take better care of one another.

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Just outside the DC Beltway, in Maryland’s sprawling first congressional district, an electoral battle is underway that exposes unique ideological fault lines beneath America’s political landscape.

The campaign pits freshman “Blue Dog” Democratic congressman Frank Kratovil in a rematch against Republican Dr. Andy Harris. Given the political tilt of the district, coupled with the Tea Party tsunami gathering force this year, one would think that this race should be a slam dunk for Harris.

A tall, affable family man, Harris is an anesthesiologist, Navy veteran, hardcore free-marketer, and constitutional conservative. By contrast, Kratovil, a former attorney, tries to portray himself as an “independent” who distances himself from Nancy Pelosi and the House Democratic majority. However, the Washington Post reports that “Frank Kratovil has voted with a majority of his Democratic colleagues 84.6% of the time during the current Congress.” Among his least popular votes since taking office: support for the “cash for clunkers” program, for the near-trillion-dollar “stimulus” spending orgy, and for the hugely expensive “cap-and-trade” energy bill. Plus, of course, his vote to elevate the widely reviled Pelosi to the Speaker’s position.

Yet, despite all that, a recent poll finds Harris holding only a statistically insignificant three-point lead over Kratovil. This, while other GOP candidates are faring much better even in usually “safe” Democratic districts.

What’s going on here?

One of the most infuriating spectacles this election season is supposedly “Republican,” “conservative,” and “pro-business” individuals and groups supporting entrenched liberal incumbents against free-market, limited-government challengers. For many special-interest “insiders,” even on the right, philosophical convictions are far less important than sharing a “seat at the table” with the politically powerful.

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In Washington, DC, talking about the Bill of Rights can land you in jail for 90 days.

Our nation’s capital has a licensing scheme in place that makes it illegal for anyone to “guide or escort” anyone else for hire without first getting the government’s permission. To get the license, which the Washington Post editorial board labeled a Tour de farce, eager entrepreneurs must first pay hundreds of dollars in fees, fill out a bunch of forms and pass an arbitrary test.

That is, they need to jump through all sorts of needless hoops before they’re allowed to speak.

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The bottom line is that the Constitution protects your right to communicate for a living, whether you are a journalist, a stand-up comedian, a musician, or a tour guide.  The government cannot be in the business of deciding who may speak and who may not.

That is why two Washington, DC, tour guides—Tonia Edwards and Bill Main, who run a company called Segs in the City—joined forces with the Institute for Justice to file a major federal lawsuit challenging DC’s tour-guide licensing scheme as a violation of their fundamental constitutional rights. Video and photos of the press conference are online.

Nearly every day, Tonia and Bill teach a group of people how to ride Segways and then take them around Washington, DC, on a tour of the city.  Their business is located near the National Archives, so one of the things they tell their customers is where the Bill of Rights is located.  For this, the city government could throw them in prison for three months.

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I’ve met a lot of people across the country since those news cameras caught me doubting Barack Obama’s ideas for giving my money to someone else. Over the last 18 months I have mostly enjoyed my role speaking as and for average working Americans.

Nobody puts a cordon around me to keep the “little people” away because this Ohio plumber is one of the little people. I talk with just about everybody and it’s been an education.

Everywhere I go at least one person asks me what it’s like to meet the political and media “stars” I’ve come across and who we all see on the national stage. Maybe we all want to believe that the best about us can be found in these people because it is they who will have the real power to change the direction of the country.

I can tell you that some of these national figures are real and some are not. What else is new? The hotter the spotlight, the more the tendency to “go cardboard” with scripted remarks, handlers keeping people away and a distance between what is real and what is “packaging”. It’s not always the case but pretty common from what I’ve seen.

What I have found, however, is a deep well of good ideas, common sense, decency and strength of character in the everyday people I meet. If you really want to know what makes America strong and good and resilient, look to our hometowns, not to the national stage.

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I’m the innocent bystander…not anymore!

In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. See Duncan, 391 U. S., at 149, and n. 14. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.

It is so ordered.

And so, our 2nd Amendment right to firearms settles into its proper place among our pantheon of fundamental rights.  The truth of the matter is that we always retained that right, but the law had been interpreted contrary to the Constitution.

Two arguments were the focus of McDonald v. Chicago: (1) the narrow interpretation of the 14th Amendment’s “privileges and immunities” clause adopted in the Slaughter-House Cases should be rejected; and (2) the 14th Amendment’s “due process” clause incorporates the 2nd Amendment right.  Justice Thomas addressed the first argument in a concurring opinion (arguably the bigger precedent), but we will turn to that topic in Part II.  Justice Scalia skewered Justice Stevens’ dissenting opinion in another concurring opinion, but that will be the topic of Part III.  First let us examine Justice Alito’s plurality opinion concerning the second argument, and the dissent of Justice Breyer. (more…)

From the Associated Press:

The Supreme Court held Monday that the Constitution’s Second Amendment restrains government’s ability to significantly limit “the right to keep and bear arms,” advancing a recent trend by the John Roberts-led bench to embrace gun rights.

By a narrow, 5-4 vote, the justices also signaled, however, that some limitations on the right could survive legal challenges.

Writing for the court in a case involving restrictive laws in Chicago and one of its suburbs, Justice Samuel Alito said that the Second Amendment right “applies equally to the federal government and the states.”

The court was split along familiar ideological lines, with five conservative-moderate justices in favor of gun rights and four liberals opposed. Chief Justice Roberts voted with the majority.

Two years ago, the court declared that the Second Amendment protects an individual’s right to possess guns, at least for purposes of self-defense in the home.

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Civil rights.  Inalienable rights.  Human rights.  Animal rights.  Individual rights.  Group rights.  God-given rights.  Sacred rights.  Natural rights.  Positive rights.  Negative rights.  Children’s rights.  Parent’s rights.  Patient’s rights.  Property rights.  Personal rights.  Basics rights.  Fundamental rights.

Just what is a right?  Can some rights be more basics or fundamental than others?  Which is more important, a basic right or a fundamental right?  Do the rights of the many outweigh the rights of the few?  Are rights absolute?  One could assert whole new kinds of rights and then argue about where they fit in among all the other rights.  How about essential rights, or core rights, or perhaps preeminent rights?

Definitions of the nature and origin of rights vary widely – from a gift from God, to one of Thomas Jefferson or James Madison’s tenets, all the way down to “a good thing” – but these disputes can be left to theologians and historians and scatterbrains.  Let constitutional scholars debate the fine points of original intent or understanding (of each delegate?  or the drafter of a particular clause?  or the Convention as a whole?  or Congress?  or the ratifying state conventions?).  What really matters is how rights function within our constitutional system.

A person saying he has the right to XYZ, for instance, is saying that regardless of what other people want, he must have XYZ and society must give it to him.  To admit there is such a right is to accept that the opinion of the majority on his having XYZ is meaningless; it is to accept that your opinion on the issue is meaningless, too.  As anti-democratic limitations on the scope of majority rule, rights are like provisions of the Constitution.  Indeed, they are one and the same, because in a practical sense – the only sense that matters – a right is a government policy that must be so regardless of majority will.

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Sixth Circuit Justice Diane Wood, on President Obama’s short list for the Supreme Court, has drawn fire for supporting Justice Blackmun’s assertion in Roe v. Wade that abortion was among “a core set of individual rights exists that neither the states nor the federal government may trample.”

Taken by itself, this statement should be unobjectionable to anyone who believes in such a thing as “rights.” The real problem is that liberal judges have taken it upon themselves to decide which rights are worthy of constitutional protection.

Beginning in the progressive era, the left has articulated a double-standard of rights, one in which “property” rights are separated from and subordinated to “non-property” rights, often referred to as “personal” rights or “human” rights. Part of their argument for this distinction was that the founders themselves, or their nineteenth-century interpreters, made the same distinction, but put economic or property rights above human rights. Theodore Roosevelt, in his progressive phase, claimed that Abraham Lincoln “showed the proper sense of proportion in his relative estimates of capital and labor, of human rights and property rights,” by giving preference to personal rather than property rights.

But this is a fundamental distortion of the founders’ view. They never made any such distinction.

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Today, in 1791, the Bill of Rights become law, ratified by the Virginia General Assembly.

Last year’s landmark Supreme Court decision in District of Columbia v. Heller definitively settled the fact that the Second Amendment secures an individual right—not a collective one—to keep and bear arms. Yet that ruling applied only to the federal government (which oversees Washington, D.C.). Does the Second Amendment apply against state and local governments as well?

Through a series of legal decisions handed down over the past century, the Supreme Court has gradually held that most of the protections in the Bill of Rights apply to the states via the Fourteenth Amendment, which declares, “No 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.” The Second Amendment, however, has been glaringly absent from this process, leaving state and local governments free to systematically violate gun rights.

Until now.

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