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Did Jefferson and Madison Believe in Restrictions on the 2nd Amendment? No.

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Ever since we ran our report outlining how President Trump has ramped up enforcement of unconstitutional federal gun control for three straight years, I’ve been inundated by excuses. They range from “he has to enforce the law” to “Hillary would have been worse.”

One of the most disheartening excuses is that “The Second Amendment isn’t absolute. It has its limits.”

This sounds an awful lot like Nancy Pelosi’s view of the Constitution.

And it’s flat-out wrong. You won’t find an asterisk after “shall not be infringed.” No terms and conditions apply. The Second Amendment absolutely prohibits any federal infringement on the right to keep and bear arms.

One reader tried to back up his assertion by pointing out that even Thomas Jefferson and James Madison believed the Second Amendment had its limits. His proof? Both men were present at a University of Virginia Board of Visitors meeting that banned firearms on the university grounds.

We’ve heard this exact argument before from people on the left supporting this or that federal gun control, and it reveals a gross misunderstanding of the Second Amendment.

It is true Madison and Jefferson were present at the board meeting in October of 1824, along with James Breckenridge, John H. Cocke, George Loyall and Joseph C. Cabell. It’s also true that the board banned students from possessing firearms on the university campus. The ban was part of a long list of rules for student conduct approved by the board.

“No Student shall, within the precincts of the University, introduce, keep or use any spirituous or vinous liquors, keep or use weapons or arms of any kind, or gunpowder, keep a servant, horse or dog, appear in school with a stick, or any weapon, nor, while in school, be covered without permission of the Professor, nor use tobacco by smoking or chewing, on pain of any of the minor punishments at the discretion of the Faculty, or of the board of Censors, approved by the Faculty.” [Emphasis added]

The board also banned students from making “disturbing noises” in their rooms, from making “any festive entertainment within the precincts of the University,” and prohibited “habits of expense.”

It’s important to note that the board did not pass any laws. Violaters could not be charged with a criminal offense. They were only subject to student discipline up to and including expulsion from the university. It was, in effect, nothing more than a student code of conduct. In fact, you could argue that the board didn’t completely ban weapons from campus. It simply prohibited “students” from possessing or using them.

But given that the UVA was a state-funded public university, doesn’t the Second Amendment prohibit this infringement on a student’s right to keep and bear arms?

No.

The Second Amendment was not understood to apply to state governments. The Bill of Rights restricts federal power. The preamble to the document makes this clear. Nobody arguing for the ratification of the Bill of Rights claimed it applied to state or local governments. In fact, if they had, it would never have been ratified. It wasn’t until the Supreme Court invented the “Incorporation Doctrine” out of thin air based on a dubious reading of the 14th Amendment that anybody seriously considered the Bill of Rights as a restriction on the actions of state governments.

Up until the Incorporation Doctrine began to take hold, the actions of state and local governments were only restricted by the bill of rights in the state constitutions. It would have never occurred to Madison or Jefferson that the Second Amendment might be in play when creating a code of conduct for university students. If anything, they would have looked at the Virginia State Constitution of 1776. And the state Bill of Rights did not include any restrictions on regulating firearms.

Based on Jefferson and Madison’s participation on the UVA Board of Visitors and the student weapons ban, you could reasonably conclude that they didn’t believe the right to carry a firearm was absolute. But it does not prove that they believed the Second Amendment has limits. The Second Amendment had no bearing on the UVA’s student code of conduct. Madison and Jefferson’s actions prove nothing about the Second Amendment.


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Tenth Amendment Center

The Tenth Amendment Center works to preserve and protect Tenth Amendment freedoms through information and education. The center serves as a forum for the study and exploration of state and individual sovereignty issues, focusing primarily on the decentralization of federal government power. Visit https://tenthamendmentcenter.com/

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