Category Archives: Second Amendment

In Defense Of The 2nd Amendment

In response to the Orlando terrorist attack, David S. Cohen penned this article which was published on Rolling Stone’s webpage.  It’s title, “Why It’s Time to Repeal the Second Amendment” is refreshing for its honesty.  Statists who wish to further empower government at the expense of individual liberty usually do so in small doses, with suggestions of ‘reasonable’ impositions on our liberties in order to give the government ‘just a little’ more authority over us in order to fix some perceived problem.  The goal is usually to induce us to take that first step out onto a slippery slope where we will then be expected to acquiesce to further incremental losses of our liberties.  Cohen’s call for the complete repeal of the 2nd Amendment is refreshing because it is honest.  No slippery slope here – he wants you to agree to an outright repeal of your right to keep and bear arms.

Unfortunately, the honesty is confined entirely to the title.  The body of this short article is filled with unsupported leftist propaganda.  Included are inaccurate criticisms of the Founders (they “enshrined slavery into the Constitution in multiple ways”); straw-man arguments against the perpetual perfection of the Constitution (no one seriously argues that the Constitution is perpetually – or temporarily – perfect); a leftist checklist for how the Constitution might be improved (an equal rights amendment, Senate representation based on population); and misdirecting arguments about gun control which avoid discussing the reason the 2nd Amendment was proposed and ratified (firearms are capable of more damage than the founders could have imagined; the risks of the right to keep and bear arms now outweigh the benefits; though Cohen offers no analysis or comment on what the benefits are).

Though Cohen has posited several assailable propositions in just a few sentences, one who wishes to clearly and demonstrably refute them is forced to do so in substantial detail.  The refutation necessarily takes more time, and words, than does the statement of the simple proposition.  For that reason, I’ll limit my criticism to only one aspect of Cohen’s article…the conflation of ‘liberty’ and the ‘right’ to be safe and secure.

Statism cannot prevail for long where liberty is understood and appreciated.  Statists know this.  For that reason, they’ve gone to great effort over the years to muddle the definition of the word ‘liberty’ in order to introduce confusion. We see this tactic utilized in Cohen’s article.  He wrote:

“Gun-rights advocates like to make this all about liberty, insisting that their freedom to bear arms is of utmost importance and that restricting their freedom would be a violation of basic rights.  But liberty is not a one way street. … It includes the liberty to…go anywhere and feel that you are free to do to so without having to weigh the risk of being gunned down by someone wielding a weapon that can easily kill you and countless others.  The liberty of some to own guns cannot take precedence over the liberty of everyone to live their lives free from the risk of being easily murdered.”

Cohen misunderstands and therefore misrepresents liberty.  ‘Liberty’ connotes the relationship between government and citizens.  It involves the question of what impositions the sovereign can place on the freedom of citizens.  It has no place in any discussion regarding citizens’ actions among each other. The usage of the word ‘right’ in the context of interactions both between and among individuals and between individuals and government has possibly helped to further this confusion.  A good case in point is the 2nd Amendment itself which provides that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  Thus, the right to keep and bear arms, like the right not to incriminate oneself, and the right to free speech, is a liberty because the government is restrained from limiting or regulating our autonomy in that regard.  In contrast, the right not to be murdered by a fellow citizen is not a liberty because it does not involve the misplaced force of government.

When Cohen attempts to place the ‘liberty’ to keep and bear arms in the same context as the ‘right’ not to be murdered, he implies a false equivalency between liberties (from government intrusion) and rights (vis-a-vis fellow citizens).  These concepts are not one in the same.  Statists hope that the casual or uncritical reader will accept this false equivalency and perform their own balancing test between a real liberty (the government can’t infringe on gun ownership) and a right mislabeled as a ‘liberty’ (not to be murdered by a fellow citizen).  Faced with that deceptive choice, some would quickly determine that that the ‘liberty’ not to be murdered is more important that the liberty of keeping and bearing arms.  Thus, statists hope that the failure to understand and appreciate the difference between liberty from governmental intrusion and a right not to be murdered by a fellow citizen will lead one to embrace the notion of voluntarily yielding liberty in exchange for a mere promise of better security and safety.  While some would suggest that such a trade-off is advisable, one should come to that conclusion only after coming to a full understanding of what the tradeoff is – real liberty for a mere promise of security – rather than what Cohen portrays it to be – yielding one liberty to enhance or protect another.

Once properly understood, the proposition that the 2nd Amendment should be repealed gives rise to some obvious questions which should be carefully considered before yielding a liberty which has been held inviolate since the founding of the country.

  • How will the government meet its promise of providing better security?
  • What basis does the government have to suggest that we will be safer without the right to keep and bear arms?
  • If we yield our right to keep and bear arms, we’ll be less secure in our own homes.  How will the government replace the personal security we can now provide for ourselves and our families?
  • Once we amend the Constitution to eliminate our right to keep and bear arms, it will be very difficult if not impossible to turn back.  What if it doesn’t work and we end up less secure as a result of the fact that we may be prohibited from owning guns to protect ourselves?

Finally, we must keep in mind the real reason the 2nd Amendment was ratified in the first place – not for hunting, target shooting or even home defense, but to safeguard against tyranny.  Just a few short decades ago authoritarian tyranny was rampant in the world.  Today it still exists, though in smaller, often ignored pockets.  But throughout all of human history, authoritarian tyranny has prevailed.

Over the course of the decades since World War II, democratic governments across the world have acted to restrict the liberty of their citizens to keep and bear arms.  As such, America stands as the last major western democratic nation where the people have retained that liberty.  We once learned and should now remember the horrible consequences that can befall an otherwise free people when their liberty to keep and bear arms is breached.  We should not be so cavalier as to yield our liberties when times are such that they may not seem to be crucial.  The liberty to keep and bear arms is crucial and will always be crucial because times change. History is not static.  We must maintain that particular liberty in order to have any hope of maintaining all our other liberties should the day come when it is necessary to defend them.  If we yield the liberty to keep and bear arms, all others will be placed in a state of perpetual jeopardy and we will have willingly exposed ourselves to all that history should by now have taught us to guard against.

 

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Beyond The Right To Carry Firearms

Judging from social media comments, there is a lot of misunderstanding concerning the recent ruling by the 9th Circuit Court of Appeals in Peruta v. County of San Diego.  The purpose of this article is to clear up the some of the confusion and to call attention to a potential scenario whereby the question of the 2nd Amendment ‘right to carry’ might ultimately be used by the left in an effort to damage the Constitution beyond the 2nd Amendment.

In Peruta, the 9th Circuit ruled that there is no 2nd Amendment right to carry a firearm in public.  The states comprising the 9th circuit are: Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon and Washington.  Because Peruta is a decision by the 9th Circuit, it affects only those states.  Importantly, it does not make carrying a firearm illegal in those states.  It doesn’t nullify or void or de-constitutionalize any 9th Circuit member states’ laws permitting citizens to carry.  It merely states that there is no individual 2nd Amendment right to carry a firearm.  Thus, states may choose to disallow carrying a firearm, but they are not required to do so.  Any state in the 9th Circuit which chooses to permit carrying may do so.  That has not changed.  And the 9th Circuit decision has no direct legal effect at all in any state outside of the 9th Circuit.

Of course, that is not so say that the Peruta decision is no cause for concern outside of the 9th Circuit.  If a citizen’s rights are infringed, we should all be concerned.  Similarly, anytime an American court attempts to justify perceived impositions upon constitutional rights, we rightfully worry about the rule of law and the continued diminishment of our Constitution.  Finally and most importantly, the practical ramifications of the 9th Circuit decision might be more profound and much more imposing than would initially appear.

In the event the Peruta decision is accepted on appeal by the Supreme Court, or a similar case from another Circuit results in such an appeal being accepted by the Supreme Court, then the Supreme Court will have the opportunity to decide for the entire nation what, if any constitutional right individuals have to carry firearms.  Were the Supreme Court to issue a decision in accord with the holding in Peruta, there would be virtually no individual constitutional right to carry a firearm, whether concealed or open carry.  Any state could legislate stringent restrictions or virtual bans.  But again, they would not be obliged to do so.  A rights respecting state would still have the ability to enable individuals to carry firearms despite the ruling that they have no 2nd Amendment right to do so.  There is however a larger concern in the event all three branches of government align.

‘The Supremacy Clause’ of the Constitution is contained within Article 6 which provides in part that the “Constitution, and the laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”  The Supremacy Clause made perfect sense when drafted because there was an expectation that the powers of the Federal government, limited as they were by the Constitution itself, would remain limited.  The founders expected that any significant attempt by the Federal government to illegally expand its power would by rebuffed by the states and by the people.

The New Deal era ushered in a new age in Federal Government power.  As I wrote more extensively here, a Supreme Court which had been a stalwart protector of the Constitution against overreaching New Deal legislation, became compliant to Congress and FDR almost overnight.  Where it had typically used judicial review of federal legislation to limit the Federal Government to its constitutional sphere, it began reinterpreting the now ‘living’ Constitution so as to enable a massive expansion of Federal Government power.  One of its favorite and well-worn avenues for doing so was the misinterpretation of ‘The Commerce Clause’ of the Constitution.

Article 1, Section 8 of the Constitution specifies Congress’s powers.  Included is the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”  The Commerce Clause was intended to enable Congress to regulate trade among the states so that it could be normalized and in order to avoid trade conflicts between and among the states.  For decades that’s how it was utilized and interpreted.  Only after the advent of the ‘living’ Constitution, did the Federal Government use the Commerce Clause to justify the widespread intrusion upon myriad private economic and personal relationships between and among individuals – and the Supreme Court rubberstamped virtually every expansion for decades.

Finally, in 1995 the Supreme Court decided the case of Lopez v. United States.  In Lopez, the Court considered the constitutionality of the Gun-Free School Zones Act of 1990.  The Act made it a crime to knowingly possess a firearm at a place that the person knows, or has reasonable cause to believe is a “school zone”.  The statute in no way purported to regulate a commercial activity, nor did it require any link between the possession of the fire arm or the fire arm itself, to interstate commerce.  The sole basis asserted for constitutional authority was that possession of a firearm in a school zone ‘substantially affects’ interstate commerce.

In its effort to defend the statute, the government argued that a firearm may result in violent crime and that violent crime in and around a school could be expected to affect the national economy in two ways.  First, the costs are substantial and those costs are ultimately spread throughout the entire population.  Second, violent crime reduces the desire or willingness of individuals to travel to areas deemed unsafe.  Also, guns in and around schools could damage the learning environment ultimately resulting in a less productive economy.  Based on this reasoning, the government contended that Congress had a rational basis to conclude that the statute would substantially affect interstate commerce.

The opinion was authored by Justice Rehnquist.  Justices Thomas, O’Connor, Scalia and Kennedy joined in majority for the decision.  The opinion  identifies several prior cases where the Court found Federal legislation to be authorized under the Commerce Clause and argues that each involved an economic activity that substantially affected commerce.  Specific examples provided are Hodel (“intrastate coal mining”), Perez, (“extortionate credit transactions”), Katzenbach (“restaurants utilizing substantial interstate supplies”), Heart of Atlanta (“inns and hotels catering to interstate guests”) and the infamous Wickard v. Filburn (“consumption of homegrown wheat”).  The distinguishing factor in the Court’s decision to disallow the Gun-Free School Zones Act was the notion that the activity regulated was not commercial or economic activity.  With Lopez, the Court finally drew a line in the sand beyond which it would not permit to Congress to use the misinterpreted Commerce Clause to legitimize an expansion of Federal power.  If activity isn’t commercial or economic, the Commerce Clause won’t be read to authorize Congress to regulate it.

To be sure, the statists who desire an ever expanding Federal Government would like nothing more than to overturn Lopez and return the misinterpreted Commerce Clause to its former status as an infallible and infinite source of federal power – which brings us back to Peruta and its potential aftermath.  One can foresee a two stage effort statists might employ to simultaneously achieve two goals; erode the 2nd Amendment and overturn Lopez.

The first stage would employ an appeal to the Supreme Court in an effort to nationalize the Peruta decision or some variation of it.  The end goal would be a Supreme Court decision declaring that there is no 2nd Amendment right to carry a firearm, whether concealed or open carry.  If that effort succeeds, the second stage would employ Federal legislation, purportedly authorized by the Commerce Clause, to make concealed carry illegal nationally.  Because of the Supremacy Clause, any such legislation would override any state legislation recognizing the legality of concealed carry.

Of course, the Federal law banning carrying nationwide would necessarily result in an appeal to the Supreme Court based on Lopez.  It’s one thing for the Supreme Court to have ruled in the first stage that there is no 2nd Amendment right to carry.  It’s another thing altogether for Congress to assert the authority at the Federal level to ban carrying firearms.  Lopez established that there is no such authority under the Commerce Clause.  Thus, the left would seek to overturn Lopez.  If successful, the statist effort could result in a Supreme Court decision that both recognizes the legitimacy of Federal legislation outlawing the carrying of firearms and overturns Lopez thus reopening the font of illegitimate federal power that was the misinterpreted Commerce Clause.

I’m not predicting this scenario will come to pass or even that statist forces will make the effort.  But if the day comes when statists judge that the Supreme Court would seriously consider nationalizing the Peruta decision and overruling Lopez and that Congress would pass national concealed carry legislation, it would be extremely naïve to believe that they wouldn’t make the effort.  The left is nothing if not patient and should be expected to make this effort when the time is right even if not for many years.  Those who would defend the Constitution, federalism and individual liberty should be mindful of such a strategy and vigilant if circumstances develop which tend to indicate such an effort is underway.

 

 

 

 

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Roseburg Oregon, Human Emotion & The Second Amendment

Within a few hours of the shooting yesterday in Roseburg, Oregon, President Obama took to the microphone for his predictable demagoguery on the issue of gun control. Whenever such a crime occurs, he and others who support restricting or eliminating our liberty to keep and bear arms can be counted on to make an almost immediate appeal to the public’s understandable emotional response to such irrational violence. At the time of his comments, there were absolutely no details available upon which he could judge that adoption of some restriction or regulation would have prevented the shooter from acquiring guns. But that didn’t stop him from pontificating regarding the need for unspecified gun control.

“The notion that gun violence is somehow different and our freedom and our constitution prohibits any modest regulation of how we use a deadly weapon when there are law-abiding gun owners all across the country who can hunt, protect their families, under such regulations, it doesn’t make sense… Each time this happens, I’m going to say, ‘We can actually do something about it.’ But we’re going to have to change the laws. I’ve got to have Congress, state legislators, governors who are willing to work with me on this.”

The obvious chasm between the unknown facts regarding how the shooter obtained guns and the call for “modest regulation” and a “change” in “the laws” in order to “do something about it”, is far too wide for any tortured logic to span. He might as well have said, “we don’t know how this shooter obtained his guns, but we need legislation to stop anything like this from happening again”. Barring a complete ban on guns, what does that mean? Obama doesn’t need to concern himself with whether his call for gun control makes sense for two reasons. First, he is making an appeal to emotion rather than reason. Second, he can count on the main stream media to ignore the fallacy of his argument, or more likely, reinforce it.

Those who seek to curb our liberties often complain that Second Amendment advocates aren’t willing to engage in ‘common sense’ compromise in order to ‘stem the tide of senseless violence’. Notwithstanding the fact that they rarely support their arguments with the pesky details of how their proposals will stem gun violence, they ignore the fact that compromise is not always a good thing. ‘Compromise’ is a blessed word in American politics and is often invoked in the spirit of ‘getting things done’ and ‘avoiding gridlock’. When it comes to our liberties, ‘compromise’ is an evil word. ‘Getting things done’ always means yielding more of our liberty. When it comes to maintaining freedom, gridlock is good.

Since the advent of the New Deal, America has a long history of diminishing individual liberty ostensibly in exchange for coercive legislation which is always promised to make American life better and more productive. In reality, the impositions on our liberties have led to a lower standard of living and have created an administrative leviathan which is ever expanding and utterly unproductive. We should learn from past mistakes and keep an iron grip on our remaining liberties, including the Second Amendment right to keep and bear arms. We should identify emotional demagoguery for what it is, a cheap, unsupported appeal for our acquiescence in the usurpation of our freedom. We should insist on well-reasoned position statements from our political representatives. When those who seek to persuade us to yield our rights ultimately make specific proposals for “common sense” gun legislation, we should insist that they explain exactly how such legislation would have stopped any of the mass shootings they so often use as an emotional springboard to launch their efforts against gun liberty and how they will prevent such violence in the future. Without exception, we’ll find their logic is lacking.

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A Tax On Guns And Liberty

The ‘Civil War Amendments’ (Amendments 13, 14, and 15) were swiftly adopted and ratified after the close of the Civil War in order to constitutionalize the full citizenship and equal protection under the law of former slaves and their progeny.  Unfortunately, state induced discrimination continued.  The ‘poll tax’ was one of the many manifestations of the “legal” discrimination of blacks via ‘Jim Crow’ laws.  The point of the poll tax was to prevent blacks from exercising the franchise, thus eliminating their participation in our system of self-governance.  Because the franchise is fundamental to citizenship in a self-governing political system, the poll tax was nothing less than an effort to diminish the citizenship of blacks then guaranteed by the Constitution as amended.  Ultimately, the poll tax was a tax on democratic participation.  The Supreme Court rightfully held in Harper v. Virginia Board of Elections that state poll taxes are unconstitutional because they violate the 14th Amendment.

The city of Seattle recently imposed a tax on the purchase of any gun or ammunition within the city’s limits.  The tax is unique to guns and ammunition, applying to the purchase of no other goods or services.  By design, the tax would increase the cost of gun ownership and use, thus discouraging purchases and negatively affecting citizens’ ability to acquire and use firearms.

America’s founders recognized the necessity of the right to keep and bear arms in establishing and maintaining liberty.  Richard Henry Lee wrote that “to preserve liberty, it is essential that the whole body of the people always possess arms…” As a result, they adopted and ratified the Second Amendment, thereby making the Constitution expressly recognize and protect the right to keep and bear arms.  Because the right to keep and bear arms is fundamental to liberty and its preservation, the gun tax is nothing less than an effort to diminish liberty.

The National Rifle Association, the National Shooting Sports Foundation and the Second Amendment Foundation along with others, have filed suit against Seattle in order to seek a judicial determination that the gun tax is illegal because, among other reasons, it violates the 2nd Amendment right to purchase guns and ammunition and thus, to keep and bear arms.  Just as the poll tax was an unconstitutional impediment to the constitutional right to vote, the gun tax is an unconstitutional impediment to the constitutional right to keep and bear arms.  The NRA should prevail in its lawsuit and the Court should rule that the Seattle gun and ammunition tax is unconstitutional as it violates the 2nd Amendment.

 

 

 

 

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