a conservative majority, Amy Coney Barrett, assault weapons, D/S/Cs, gun bans, Harris/Biden, Heller, McDonald, Ruth Bader Ginsburg, second amendment, second-class rights, settled law, the Supreme Court
With Amy Coney Barrett’s nomination for the Supreme Court, and her likely confirmation after what will certainly be a cruel and ugly series of attacks that will make the Kavanaugh debacle look like a Girl Scout cookie sale, some are suggesting the Second Amendment will finally, for as much as a generation, be safe. Don’t be so sure.
Back in February of 2013, in The Courts Won’t Let The Government Destroy the Second Amendment…right? I wrote:
High-powered Washington DC attorneys David B. Rivkin Jr. and Andrew M. Grossman recently published an opinion piece in the Wall Street Journal Online titled:
‘Gun Control and the Constitution
The courts would no more allow government to undermine the Second Amendment than the First.’
‘The Supreme Court’s 2008 decision in Heller v. District of Columbia confirmed that the Second Amendment means what it says: ‘the right of the people to keep and bear arms shall not be infringed.’
After Heller and its follow-on case, McDonald v. Chicago, which applied the Second Amendment rights to the states, what government cannot do is deny the individual interest in self-defense. As a legal matter, that debate is settled.’
The article examined reality during the second Obama term. As you might imagine, I concluded the courts will indeed allow government to damage, even destroy, the Second Amendment. This is particularly so because as the Congress has, more and more, abdicated its legislative role, allowing the administrative state unprecedented powers, they have also turned the courts into super legislatures used to give, by judicial fiat, Democrats/Socialists/Communists what they cannot get through the legitimate legislative process. Republicans are also complicit, but surely not to the degree of D/S/Cs.
While Heller and McDonald are “settled law” in a technical sense, the Supreme Court has scrupulously avoided granting cert to a substantial number of significant cases that would allow them to define, in a very practical sense, the issues Heller did not touch. These are issues such as what limitations, if any, the government can impose on concealed carry. Can the government continue to treat the ownership and use of suppressors—very much a public health issue—as they do machineguns? Are bans on entire classes of firearms—so-called “assault weapons”–constitutional? Are magazine limit bans constitutional? Are “Red Flag” laws constitutional, particularly if they have inadequate due process provisions? Should American’s fundamental rights be taken away for misdemeanor convictions?
Ignoring these cases, refusing to rule for liberty, means millions of Americans continue to be deprived of essential liberties. Surely, they can move out of despotic cities and states–we still possess freedom of movement–but it’s not always easy for people to uproot themselves, even if it means fully vindicating their unalienable rights.
These, and other issues, remain to be resolved, and the governments of D/S/C-ruled cities and states, when they’re not focused on defunding their police agencies, take advantage of these ambiguities to harass law-abiding gun owners, and citizens who might want to become gun owners, as much as possible. Is an unalienable, express constitutional right, even one technically recognized by the Supreme Court, an actual right if citizens have to wage expensive, lengthy legal battles to secure incremental portions of it? Consider that several of the current justices have decried the Court’s unwillingness to further define the application of the Second Amendment in the lives of Americans, rightly observing the Court is treating the Second Amendment like a “second-class right.” Of what use is a right on paper if it has no real application in the lives of Americans?
Ah, but with the confirmation of Amy Barrett, the court will have a 6-3 “conservative” majority. Let us keep in mind Republicans usually fail to explain to the public what this should mean: a “conservative” justice is one whose decisions are based entirely on the Constitution and the law, never on their personal, political preferences. They are originalist and textualists. They believe the words of the Constitution are clear and easily understandable, and do not change, absent a constitutional amendment. Even if a given justice thinks a law before the court well intentioned, perhaps even noble, if it is not constitutional, that’s the end of that argument. What Republicans should be saying, and do not, is there should never be a single justice on the Court dedicated, as Ruth Bader Ginsburg was, to “fighting for equality,” or feminism, or diversity, or free Crispy Crème donuts in the mornings, or universal health care, or climate change. If they want to fight those fights, they should run for Congress.
Chief Justice John Roberts has, as is all too common with supposed “conservative” Supreme Court Justices, become a disappointment to Americans that expect justices to uphold the Constitution. No one expects anything of “liberal” justices, other than ignoring or warping the Constitution, and ruling in favor of D/S/C policies. The 6-3 majority will, supposedly, nullify Robert’s power to rule America with a single vote.
In a nation under the rule of law, this might be so, but more and more, America is a divided nation, with Blue states under the rule of social justice, and red states under some versions of the rule of law. It’s likely, under a second Trump Administration, with Amy Coney Barrett on the Court, the scope of the Second Amendment would be further expanded in favor of individual liberty, but the law grinds slowly indeed, and four years is a very short time in the life of a nation, particularly when the entire D/S/C apparatus—Congress, the deep state, the media, academia, professional sports, etc.—is daily focused on destroying the president and seizing, forever, ultimate political power.
It is now entirely possible–even likely–if Judge Barrett is confirmed, D/S/Cs will proclaim the Supreme Court illegitimate, just as they will surely proclaim a second Trump term illegitimate, and ignore, to varying degrees, any decision of the court with which they disagree. That would be any decision that supports the Constitution, and which in any way diminishes their power.
Even if a 6-3 “conservative” majority takes up substantial Second Amendment cases, and resolves them in favor of individual liberty, their effect would almost surely be short lived.
We like to think the Supreme Court is beyond politics, but clearly, that’s not so. If it were, how is it a supposed 5/4 conservative majority, in the 12+ years since Heller, has refused to further expand the Second Amendment it finally, more than 200 years after the founding, acknowledged? Is it cowardice? Was that supposed majority never really there? It takes only four justices to grant cert—for a case to be heard—yet there haven’t been that many willing to deal with the Second Amendment in more than a decade? Could that be because justices dedicated to the Constitution know some supposedly “conservative” justices are unreliable and might do damage to Heller?
A theoretical 6-3 majority would almost surely be an actual 5-4 majority—Roberts cannot be counted on—but when D/S/Cs once again take power, and inevitably, they will, the Constitution will become a dead letter. Court packing might become essentially meaningless if a substantial portion of the states decided to honor only the decisions they like. Blue states would honor only those decisions that support D/S/C policy and the expansion and maintenance of ultimate governmental power. Red states would honor the only those decisions that reflected the Constitution. The Second Amendment will exist, but only as fading ink on yellowing paper. It will have application in the lives of Americans only in those states and cities that recognize the Constitution and the authority of the Supreme Court in a legitimate constitutional scheme.
Remember that the States may allot more rights to their citizens than the Constitution provides, but currently, they may not allot fewer rights. Under a Supreme Court whose legitimacy is recognized by only a portion of the states, this principle too would be defenestrated.
If Judge Barrett is confirmed, if President Trump is reelected, and if Republicans hold the Senate—the House would be icing on a tenuous cake—the Second Amendment might be relatively safe for four years. The individual rights of Americans under that Amendment might be somewhat clarified and expanded. But no one should imagine any of our liberties is ever entirely safe. As I’ve recently written, a Harris/Biden administration would have as one of its central policies the demolition of the Second Amendment and the subjugation of a disarmed populace. Even if Harris/Biden do not take power in 2020, whatever combination of D/S/Cs eventually follows them will surely not evolve to greater appreciation of the Constitution and less power for the state.
D/S/Cs have made it more than clear that when they once again seize power, they are going to make good on their threat to “fundamentally transform America.” We can be absolutely certain that transformation will, first and foremost, involve the disarming of the law-abiding. A D/S/C utopia just isn’t possible if individual Americans possess the right and means to reject it.
By all means, the confirmation of Judge Barrett will be a good thing for liberty, but we should never imagine that judges on any court will protect liberty. The love of liberty must ever burn brightly in the hearts and minds of patriotic Americans. When that fire goes out…
Perhaps you can define what exactly is a “patriotic American”. I’d even accept your defining what is an “unpatriotic American”… if that’s easier for you. Please be specific.. and show your work.
I’ll take a stab. A Patriotic American is first, an American, and second, patriotic to the values Americans hold dear as an American society under the Constution of this great Nation. But you probably already knew that.
A fairly decent definition, SGH, although in defining a term one really can’t use the term itself in the definition. I might substitute “patriotic to the values” with “sympathetic to the values”.
Mr. Ryan H. here seems to prefer to define under his own misguided, yet self-serving terms what being “unpatriotic” means… apparently anyone not in support of Trump. But I am sure Mr. Ryan is trying to deal with the pressure of his personal disappointment that Trump, with each passing day, is showing how he has betrayed his own supporters.. and America in general. “My Trump, right or wrong.”, aye Ryan?
Personally I think we define “patriotism” as what we feel ourselves as the guide in which to judge others not fitting our own definition… as Ryan so aptly demonstrated.
Mike McDaniel said:
Oh dear. I could do a rather long list, and perhaps will–you often inspire me!–but for the moment, I’d say one can identify a patriotic American the same way one can identify one who genuinely loves their wife: by their words and deeds toward the object of their affection, understanding all along their humanity and imperfections.
It’s a rather simple means of identifying a patriot, and even more so, who is not. If you urinate on or burn an American flag, you’re likely not making a profound constitutional argument and are more likely not a patriot. Kneeling on the sideline? The same. Murdering police officers… you get the picture.
I sense for many on the Right it’s far easier to define who is not a patriot.
Mike McDaniel said:
Not at all. They’re just used to dealing in fact rather than emotion.
Ryan H. said:
Not only does he know that, he is actively working against it. America is to Doug, what bleach is to viruses.
Only if injected! 😀
Mike McDaniel said:
Old Barn said:
To be a patriot is simply to love one’s country, under a correct understanding of what love is. Of course that also demands some understanding of what America is, assuming we could define that amongst ourselves, which I will not venture other than to say it might be considered to be much like the family into which one is born. As G.K. Chesterton said: “’My country, right or wrong,’” is a thing that no patriot would think of saying except in a desperate case. It is like saying, “’My mother, drunk or sober.’” The definitions will matter. Thus, if you define America as being inherently racist, you will have to leave her or destroy her rather than merely remove that deficiency. It is the difference between improvement of an existing thing (in this instance by eliminating slavery, Jim Crow laws, etc., which are fundamentally at odds with the underpinnings of the moral philosophy behind America as reflected in the Declaration) and the destruction and replacement of an existing thing, which some apparently wish to now bring about. The former would reflect allegiance to America; the latter allegiance to something against America.
You present an interesting perspective that can extend back to the beginning. Were the Founding Fathers “patriotic” to the Constitution they created given the economic application of slavery and racial disparity included with most of them? After all, they created the “all men were created equal” yet none of them went so far as to include non-whites.
I should also add.. they didn’t even include white women in that slogan.
Mike McDaniel said:
And people living more than 200 years ago, without our exquisitely politically correct, woke sensibilities, would have done that because?
Old Barn said:
As I understand it, the Founders were not ignorant of the inconsistencies regarding slavery, even when trying to craft the documents of government. We might think of it as the idea of America is not the Constitution; that idea preceded the Constitution, even the Articles of Confederation for that matter. Those documents were an attempt to capture the compromises necessary to form a government for this thing that would be America. In their words, to “form a more perfect union,” better than what preceded, but certainly that could be improved. Could they have done better? Ideally we would say yes, but practically they could not muster the votes for better. It would be easy to judge in hindsight and say they should have been purer ideologically, let some of the colonies go it on their own, etc. I prefer to be grateful they accomplished what they did, and left for us something worth loving, which includes trying to improve.
I will not comment on the woman aspect other than to say that I find most of the gender discussions to be blind to the realities of what society and culture were like and why. The laws merely reflected those realities. Most moderns prefer to think you can just take what we have now, pretend it could have existed 225 years ago, and then impose judgment on the patriarchy. It’s just historical virtue signaling and rank pride. (I’m not accusing you of that, Doug.) We may find their views of gender, family, etc., quaint, naïve, stupid, or evil, but that tells us nothing about why they held the views they did and made the choices they made in seeking to do good within the framework of the ground they were standing on.
Not interpreting any accusations, OB. I’ve often tried to present history as simply a culmination of the thoughts, feelings, social mores, spirituality, and morality as being a reflection of those times in which history became an event to remember. We largely can not use contemporary morality to judge a historical past we might find objectionable today. Of course, just saying that then conjures up our current racial problems and assignments of blame and finger pointing. I’m not going into that here. But to your point of the Founding Fathers having a less purer devotion to a certain ideology that we (seem to) have now.. I am wondering if the value that whatever we wish to put on contemporary America is not more a success of political evolution since 1789… how we, Americans past and present, blundered and managed in spite of all the historical odds to make the document (the Constitution) greater than it was in the beginning. At any point in our own past history the whole shebang could have come tumbling down. I am sure we could debate till hell freezes over all the seemingly apparent reasons the nation did not falter and collapse along the way. The Founding Fathers set the ball rolling pretty much on a wing and a prayer. As old Ben lamented… “We’ve given you a republic, if you can keep it.”
The line is very fine that differentiates between a patriot and a rebel. Pretty much where we are at today with our own divide. When I asked the definition of “patriot” SGH and yourself presented it without judgement. Ryan defined it by essentially pointing a finger saying it’s not me… in spite of the fact I never claimed myself to be a “patriot” even by any self-definition I might conjure up.
Mike McDaniel said:
Dear Old Barn:
Quite so. The Founders made compromises to create America, and one of them was slavery. If they insisted on abolishing it, America would never have existed. They did, however, create the framework for its abolition.
JOHN HUME said:
Reblogged this on Liberty & Freedom.
Mike McDaniel said:
Dear JOHN HUME:
Thanks for the reblog!
JOHN HUME said:
Thanks for the great article
Mike McDaniel said:
Dear JOHN HUME:
You’re welcome; thanks for reading and commenting!
Leonard Jones said:
Spot on Mike! The North had to make concessions to the South
to keep the union together, but they put a ticking time bomb in the
constitution. They knew the ratification clause would result in
the abolishment of slavery. The real cause for the Civil Was
that two states were about to enter the union and these two
territories were allowing a vote by their citizens. The people
got to choose whether they would be a free or slave state. This
caused the South to go bat guano crazy and attack Fort Sumpter.