Monday, January 14, 2013
The Constitution Is Not A Zombie Apocalypse Suicide Pact
Larry Pratt, executive director of Gun Owners of America, said Sunday that Supreme Court Justice Antonin Scalia was wrong to assume that the government had the right to place limits on the Second Amendment. "He was not speaking from a constitutional perspective," Pratt said.
"The amendment does provide it's own degree of scrutiny: It says, 'shall not be infringed,'" Pratt said on "Fox News Sunday" after host Chris Wallace read a quote from a 2008 case in which Scalia wrote that the Second Amendment was not "unlimited."
"And we know that at least one justice, Mr. Thomas, takes that point of view. This is not something where the government is supposed to be free to tell we the people, the government's boss, how much -- how far we can go with the Second Amendment. The Second Amendment is there to constrain the government."
'cept Thomas joined Scalia's opinion in Heller, so I'm not sure where Pratt's coming from there. But whatever.
The funny part is this guy basically has said there can be no law ever that limits a constitutional right to any degree, which kinda misses the whole problem of living in society, the entirety of US history and a metric asston of SCOTUS precedent. I wouldn't be surprised to find out Pratt also thinks that, despite having the power to tax, it's unconstitutional for government to do so because it violates some obscure natural law only known to him and extreme voluntaryists. From now on, he should be referred to as "Larry Pratt, anarchist and executive director of GOA."
Anyway, the government can and does place limits upon We the People because, while we're the boss, we also elect the government to do such things. That's why we have taxes, traffic rules, laws against murder, laws that defend our rights to life, liberty, pursuit of happiness, property, etc. To define what is protected, and what it is protected against, is to naturally define boundaries, particularly when those things come into conflict with others.
Pro-gun folks assert that the 2nd Amendment protects an inalienable right (some go further and parse the alleged difference between unalienable and inalienable, and debate which really is inscribed in the Declaration). As observed in Morrison v State:
Inalienable is defined as incapable of being surrendered or transferred; at least without one's consent.
Nobody is suggesting that gun owners surrender their rights, but one must recognize that placing reasonable regulations on said rights does not amount to infringement (and we have consented, in forming a political society, to limit the extent of our rights a little for the greater good of us all). As has been observed myriad times, we see this in regard to the 1st Amendment, where we cannot libel or slander somebody, or as Justice Holmes wrote in Schenck v US (1919):
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.
His Clear and Present Danger Test was rightfully moderated somewhat by SCOTUS later on and replaced by the Brandenburg Test in 1969:
[C]onstitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
Regardless which formulation you use, the fundamental concept remains that a specific, reasonable limit to speech is not repugnant to the Constitution. Similarly, 1st Amendment protections of religious conscience don't allow you to do anything you want in the name of faith:
- Reynolds v US (1878): A party's religious belief cannot be accepted as a justification for his committing an overt act, made criminal by the law of the land.
- Minersville Sch District v Board of Education (1940): The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities. The necessity for this adjustment has again and again been recognized. In a number of situations, the exertion of political authority has been sustained, while basic considerations of religious freedom have been left inviolate.
- Employment Division v Smith (1990): [P]recisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order.
Then there's a post-RFRA case near and dear to my Quaker WTR heart:
Although Adams's beliefs may be unusual as compared to the general population, the very body of case law relating to war tax protesters indicates that in the realm of tax litigation, she is one of many. As a result, her “compulsion” argument affords her no excuse, as the prior plaintiffs were also compelled by religious belief, but, like Adams, made the difficult decision to act in a manner contrary to law. Moreover, Adams is asking this court to draw a distinction between holding sincerely felt political and religious beliefs and facing the consequences of those beliefs; we have been and continue to be reluctant to make such a distinction. We have noted, in slightly different contexts, that plaintiffs engaging in civil disobedience through tax protests must pay the penalties incurred as a result of engaging in such disobedience.
Protecting a right does not allow it to be above all scrutiny in a diverse political society, nor allow one to exercise it with impunity to the detriment of others. An outright ban on all firearms would be a clear violation or infringement of the 2nd Amendment, yet passing regulations upon ownership through the political process that don't place undue burdens upon exercising your right are not only permissible, but rather expected as a function of our popular government.
And again, I must address the zombie myth that Pratt clings to about the 2nd being there to constrain government. As Marshall noted in Gibbons v Ogden (1824):
The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often they solely, in all representative governments.
That's what constrains government, explicitly, in our Constitution. Your puny AR-15s with slide fire stocks will not be any more successful against drones than the myriad other violent rebellions we've seen--including The One Where The South Tried To Take Their Slaves And Start Their Own Country--were against Federal muskets.
Further, I might remind Pratt that the main reason for the 2nd was to provide for a base of able-bodied citizens that would form well-regulated militias to mitigate the need for standing armies. Scalia gets the history right in Heller:
The phrase “security of a free state” meant “security of a free polity,” not security of each of the several States...Joseph Story wrote in his treatise on the Constitution that “the word ‘state’ is used in various senses [and in] its most enlarged sense, it means the people composing a particular nation or community.”
There are many reasons why the militia was thought to be “necessary to the security of a free state.” See 3 Story §1890. First, of course, it is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessary...
The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitu tion. During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric...John Smilie, for example, worried not only that Congress’s “command of the militia” could be used to create a “select militia,” or to have “no militia at all,” but also, as a sepa rate concern, that “[w]hen a select militia is formed; the people in general may be disarmed.”
Certainly this recognizes the need for protecting not just a collective, but an individual right, and yes, an armed populace is less likely to be rolled by its government (I admittedly elided that in my excerpt). But it's so reactive that you've already fundamentally lost if you have abdicated proactive exercise of political will and allowed the situation to get to that point, thus is essentially meaningless (which history has shown time and again).
As Jon Stewart said the other night--echoing my responses to some pretty whack stuff elsewhere--if you're stocking up to be ready for a hypothetical dystopian future and refusing to address our actual dystopian present (forgive his hyperbole), there's something wrong with you. In fact, I'd suggest that you're enabling that dystopian future, making it a self-fulfilling prophesy instead of doing the honest work of securing the blessings of liberty for ourselves and our posterity in the here and now.
Organizations like the NRA and GOA have really just become doomsday cults made up of people who fantasize about holing up in a mall and fending off hordes of zombies (or something more sinister, like Black Panthers).
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Wow, were those old dudes precient, or what?
"During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric"
...only needs some black helicopters and FEMA camps to bring it right up to date!
Posted by: Snarki, child of Loki | Jan 14, 2013 3:07:54 PM