Gun control and the amendment that is not the Second
In an episode on David Harsanyi’s First Freedom, the Tenth Amendment appears once, inside a broader argument about firearms. Harsanyi objects to the practice of deciding what people need, saying it is not for anyone to decide what people need “in the First Amendment or the Tenth Amendment or any other amendment,” and that the question belongs to the individual or to the state — meaning a state such as California, not the federal government. [[episodes/entrepreneurs__outlaws__and_the_right_to_bear_arms|Entrepreneurs, Outlaws, and the Right to Bear Arms – David Harsanyi on First Freedom (2018)]]
The surrounding argument is conducted almost entirely under other amendments. Harsanyi describes a Democratic sit-in for gun control and a proposal to prohibit people who had been on a secret government terror watch list from owning a firearm, which he says would affect a million Americans who had no due process; he also refers to a bill pushed by Dianne Feinstein concerning people who had traveled to certain countries, and to new California laws allowing a neighbor who is frightened to call the police, who take the gun away, with due process coming afterward. He calls these attacks on the Second Amendment, “but the Fourth and the Fifth.” [[episodes/entrepreneurs__outlaws__and_the_right_to_bear_arms|Entrepreneurs, Outlaws, and the Right to Bear Arms – David Harsanyi on First Freedom (2018)]]
Bob Zadek supplies the framing. He argues that merely having the right to own a gun does not mean one is determined to use it, and that many owners hope never to have to; he compares gun licensing to prior restraint in speech law, asking whether requiring a license in advance to prevent misuse is not prior restraint. Harsanyi agrees, and adds that the argument is a new one, noting that in the 1930s automatic weapons were banned because they were not in common use. [[episodes/entrepreneurs__outlaws__and_the_right_to_bear_arms|Entrepreneurs, Outlaws, and the Right to Bear Arms – David Harsanyi on First Freedom (2018)]]
California as a “nation-state”
A 2020 episode with Frank Buckley on American Secession opens with Gavin Newsom’s use of the phrase “nation-state” for California. Zadek recounts that Newsom complained about how President Trump and the federal government were handling coronavirus control and shelter-in-place, said he was not getting his share of supplies, and announced that California would acquire its own ventilators and testing kits and use its bargaining power to separate itself economically from Washington. Zadek calls the speech possibly a mini Fort Sumter attack. Did California Just Declare Itself a Nation-State? (2020)
Buckley’s answer is that the word “nation” alone carries no magic, and that one can imagine different nations within a single country — Quebec says it is a nation and is part of the government of Canada, and Scotland is a nation within Great Britain. Coupling “nation” with “state,” he says, suggests something more: a degree of independence. He characterizes California going its own way on the epidemic as benign, and as consistent with the Trump administration’s approach of letting states compete and find their best way — which, he says, is what federalism was all about. If what is being discussed is nothing like the Civil War but simply a return to the early federalism of the founders, that is a good thing. Did California Just Declare Itself a Nation-State? (2020)
The episode’s listed topics include the Tenth Amendment, but the excerpt breaks off at the heading “Divided Sovereignty and the Founders,” where Zadek’s name appears with nothing following it. Whatever the Tenth Amendment was to have done in that segment is not in the source. Did California Just Declare Itself a Nation-State? (2020)
The amendment as a chapter heading
The third appearance comes in a 2020 episode on populism, in a passage about tax policy and equality. Zadek argues that equality under the law largely obtains in the United States, and that the equality promoted by Biden is equality of outcome — government forcing wealth transfers from those who have more, in the government’s opinion, to those who have less, in the government’s opinion. He calls this the fault line between progressives and the founding generation. Populism 201: Advanced Topics in American Democracy (2020)
Bradford R. Kane takes issue with the characterization. He says the 2017 tax reduction sent the overwhelming amount to corporations and the wealthiest Americans and made it permanent, while the reduction for other Americans was a small fraction and time-limited, going away after what he recalls as eight years. He says Biden has made clear he will not raise taxes on people earning $400,000 a year or less, and is talking about millionaires and billionaires who received open-ended cuts; when one person is not paying, someone else is. Populism 201: Advanced Topics in American Democracy (2020)
Only then does the Tenth Amendment enter, and only as a description of Kane’s book: he says he devotes a chapter to discussing the Tenth Amendment and whether things are more focused on the states or on the federal government, and that there has been distortion of that in recent years, including during the Trump administration. He offers this as context for saying that Biden would address a serious distortion. The excerpt states no holding, no case, and no test. Populism 201: Advanced Topics in American Democracy (2020)
Across episodes
The three episodes do not develop the Tenth Amendment so much as gesture at it from different directions. Harsanyi names it in a list of amendments whose limits he says gun controllers ignore, in an episode otherwise about the Second, Fourth and Fifth. Buckley frames state independence as a return to the founders’ federalism without resting the argument on the amendment’s text. Kane treats it as a chapter topic and a site of recent distortion, in a passage chiefly about tax rates. The excerpts show no shared question being argued through, and no movement from an earlier to a later position.
What the sources do not cover
The excerpts contain no Tenth Amendment case law, no account of what the amendment has been held to mean, and no discussion of its text beyond the general idea that power is reserved to the states rather than the federal government. The California episode’s treatment of divided sovereignty and the founders is cut off before it begins. No source states a date, a bill number, or a holding on which the amendment turned.