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Unlike some of my legal-minded friends and colleagues, I think the doctrine of “incorporation” — applying federal constitutional restrictions to the states — is a little bit sketchy. The First Amendment says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”; it says nothing about the state legislature of New Jersey. That doesn’t mean that our civil rights can be legitimately taken away by the states — it means that state constitutions need their own charters of rights, which, of course, most of them have.

The Texas bill of rights, for example, contains two separate provisions regarding religion (one securing freedom of worship, the other prohibiting “appropriations for sectarian purposes”), a free-speech guarantee, rules about searches and bail, etc. It also recognizes a right to keep and bear arms, one that is in some ways clearer than the one recognized by the Second Amendment: “Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.”

Of course, the fact that the legislature may regulate the wearing of arms does not mean that it must, but it seems to me that there is some tension between the notion that unpermitted carry is a constitutional mandate and the Texas constitution’s reservation of regulatory discretion to the state. My own inclination is to treat the Second Amendment as though it means just what it says as a federal matter, while being a good federalist and making room for considerable variation in regulation at the state level.

I have lived in the South Bronx, and I have lived in a remote corner of Colorado with an elk-to-biped ratio of 24:1 — and I do not think that both places need to maintain precisely the same firearms laws. It is both constitutionally sound and prudent to maintain a good deal of local diversity, including within the states: Houston and Terlingua are not very much alike.

I’d love to sign off without reservation on constitutional carry, because I believe the right recognized (not granted) by the Second Amendment is an important one. “We win, you lose!” is always a satisfying outcome — but, sometimes, it is the wrong outcome.

— Kevin D. Williamson in ‘Constitutional’ Carry? Maybe Not

 



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