Friday, June 27, 2008

Bad Decision, Massive Confusion

The philosopher-kings (five of them, anyway) have labored and brought forth yet another mutant and deformed decision. Those who should know better are cheering lustily, and those who have cheered lustily in the past -- when they should have known better -- are weeping and gnashing their teeth.

For the record, I absolutely detest gun laws. I love liberty and individual responsibility, enforced by social sanction (and by the law, when a "real" crime, such as an assault, or a manslaughter, or a murder, is committed). The prohibitions against firearms in Washington, DC are simply wrong. So why do I think it's bad that the Supremes "struck them down," as they like to say?

Simple: because of the grounds on which they did it. The poor, dead U.S. Constitution is the defining, enabling, and limiting document of the central government; and when it prohibits the infringement of people's right to be armed, it prohibits the FedGov from doing so -- not the states, and certainly not cities and towns. When it prohibits the establishment of an official religion, that is likewise a prohibition against such establishment by the feds only. The few restrictions that the Constitution imposes on state and local governments (no coining money, no foreign treaties and alliances), it imposes explicitly. Whether local gun laws may be made or not is properly determined by state constitutions.

But ... but ... won't that lead to nonuniformity in gun laws? Yes, yes, and so much the better. I think a country as big as this one should have a Morton Grove, Illinois, where you can't legally have a gun, and a Kennesaw, Georgia, where you have to have one -- as well as a lot of places that are variously in-between. That way, you and I and Larry Pratt and Paul Helmke can each find somewhere congenial to live. But, as the U.S. continues to develop into rigidly- and centrally-enforced uniformity, such arrangements are more and more unthinkable. Why should that be?

This week's Supreme Court decision is, maybe, a little bit of a special case, in that Washington, DC is a sort of mutant creation of the FedGov, making the home-rule question somewhat obscure there. But, as the LA Times story tells us, other places are next:
Gun rights advocates Thursday made it clear that they would pursue more legal challenges, providing ample opportunity for the high court to revisit the issue.

"It looks to be a phenomenal day for gun owners and District of Columbia residents," said Wayne LaPierre, chief executive of the National Rifle Assn. "The next step is to ensure that every American has access to this right."
Where's Wayne talking about? Maybe Chicago? Or San Francisco?
In fact, even as Richard Pearson, executive director of the Illinois State Rifle Association, was saying his organization may give Chicago and other Illinois municipalities time to change their laws, his group and others were filing a lawsuit against the city and Daley.

"By banning handguns, Defendants currently maintain and actively enforce a set of laws, customs, practices, and policies under color of state law which deprives individuals ... of their right to keep and bear arms," reads the lawsuit filed by the ISRA, the Second Amendment Foundation and four individuals.

The National Rifle Association planned to file a similar complaint against San Francisco, which bars people from carrying handguns on county property, including in parks, schools and community centers.
To an extent, this reminds me of Roe v. Wade. Pre-1973, some states had liberal abortion laws, while other states outlawed or at least extensively restricted the practice. The Supremes of the time found this intolerable, and "struck down" the state and local restrictions. The parallel is imperfect, of course, since the Second Amendment plainly exists, while the 1973 Supremes had to invent an imaginary "right" to abortion out of whole -- and bloody -- cloth. It's amusing that, if we accept the conventional "right/left" stereotypes, the same folks who rejoiced over "judicial activism" ('73 edition) decry the '08 version, and vice versa. Then there's me: never happy. At least I'm somewhat consistent, though. I'd like to be happy every now and then, but I suppose I can settle for consistency.


Jeff Pruitt said...


I disagree with your general premise on the 2nd amendment decision which I believe is summed up by your statement shown below:

Simple: because of the grounds on which they did it. The poor, dead U.S. Constitution is the defining, enabling, and limiting document of the central government; and when it prohibits the infringement of people's right to be armed, it prohibits the FedGov from doing so -- not the states, and certainly not cities and towns.

Let me first say that your argument against the Roe v Wade decision is more compelling considering the 10th amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Since abortion is not explicitly mentioned in the constitution then an argument could be made that the power to regulate it should be controlled by the states.

However, I believe your argument on the 2nd amendment fails when considering the "Supremacy Clause" in Article 6:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

The right to bear arms is explicitly called out in the Constitution and thus the states, have no right to supersede it. The government of San Francisco has no more right to ban hand guns than they do to illegally search people's homes or enact slavery legislation.

I won't disagree that federalism has expanded it's bounds over the course of two centuries but we cannot allow states to ignore explicit powers and rights called out in the Constitution...

Kathryn Magendie said...

Hi Jim! I tried to leave a comment above but it wouldn't let, I'm down here...*waving at you*

kat (from WDC), while I'm here, I will do some reading.

Jim Wetzel said...


Thank you for your thoughtful comment.

I cannot agree with the reading you propose for Article 6, clause 2, because that reading makes Article 1, section 10 difficult to understand. If every action forbidden to the feds is by extension forbidden to the states -- including those implicitly forbidden by a lack of explicit constitutional authorization -- then why are some state actions explicitly forbidden here? Similarly, I think the historical context of the time makes it hard to believe that the writers of the Constitution understood the "supremacy clause" as you do. After all, Connecticut had an established state church until 1818, and no one seemed to think that was impermissible due to the first amendment to the federal constitution. Rather, I think what clause 2 of article 6 means is: if the Indiana state legislature decides to enter into a "treaty, alliance, or confederation" with Canada, or to issue a few letters of marque, on the grounds that the Indiana constitution (as hypothetically amended) empowers the legislature to do so, notwithstanding article 1, section 10 of the federal constitution, then the state legislature would be wrong to think that the state constitution trumps the federal one in that matter, explicitly addressed by the federal constitution as a limitation on state prerogative.

A side point, not germane to your comment: I am often amused by people saying that we must "maintain" our Second Amendment rights as an ironclad final guarantee against government tyranny. As one e-mail sage put it, "the Second Amendment is there in case they ignore the others." It is to laugh. Which of "the others" have "they" not ignored, and continue to ignore today? And can anyone say that the Second Amendment hasn't already been well and thoroughly trashed? After all, it says that the Congress can't "infringe" your right to be armed ... and "infringement" is well short of outright prohibition and/or confiscation. After all, you have no legal right to own an automatic weapon today, although you might hope to be granted the privilege, assuming it pleases the government, and assuming that you pay lavishly for the privilege. An automatic rifle is the basic bread-and-butter infantry weapon the world around, which makes it exactly what the writers of the Constitution had in mind ... and you pretty much can't have one (and certainly have no legal "right" to have one). But oh, yes, thank God for our Second Amendment freedoms!

It's a lot easier to make slaves of people who won't open their freaking eyes and believe what they see.