Thursday, February 15, 2018

Proof of Politics on the Court: The Second Amendment (Part II)

In McDonald, the Court held a Chicago statute banning handguns from most private citizens was unconstitutional. The main difference between McDonald and Heller was that Heller was applied to a federal jurisdiction (DC) and McDonald was applied to the States. In this case, Justice Alito applied the Second Amendment to the states via the Fourteenth Amendment using the Due Process Clause. This is similar to how almost all Bill of Rights clauses and provisions were applied to the states back in 1960s. Alito gave a historical analysis of “gun rights” around the time of the ratification of the Fourteenth Amendment (Freedman’s Act of 1866, and the Civil Rights Act of 1866) to show that the Right to “keep and bear arms” for self-defense was fundamental because it was “deep-rooted in American history and tradition” (Glucksberg, 1997).

Many of the dissent’s arguments in these two cases are easily refuted. First, the dissent suggests gun rights have two faces: both legal and criminal uses (“liberty is on both sides of the equation”). However, the First Amendment has the same two faces (obscenity, inciting words, fighting words, and defamation are crimes outside of First Amendment protections). In fact, many ugly and hateful free speech words and actions are still legal (burning crosses, burning flags, military funeral protests, and Nazi parades so long as protests are peaceful and actions do not incite violence). Many Supreme Court cases have liberty at issue on both sides of the lawsuit. This is not uncommon for example, the Slaughter House Cases in 1873. In that case, the Court faced a challenge to a discriminatory statute but the Court held it had a compelling government interest to protect the safety and well-being of the citizens in New Orleans. Secondly, the dissent argues that slavery and discrimination against women and transgender persons are “deep-rooted” in American history. However, the Fourteenth Amendment also has an anti-discrimination clause: the equal protection clause so discriminatory laws are found unconstitutional. Thirdly, the dissent tries to change the subject from “liberty” in the Fourteenth Amendment to protecting “liberty interests” which requires a lower level of judicial scrutiny. Fourth, the dissent points to stricter gun laws in other modern countries around the globe. That may be true, but we have higher crime rates and guns are needed to fight crime (kind of a “chicken and egg” scenario). Besides, no fundamental right is free from regulation and each of the 50 states can still regulate guns so long as the law has a compelling government interest to do so. The burden of proof would be on the government and they would face a strict scrutiny of judgment, but regulation is possible and that is why all 50 states have vastly different gun laws (see experimentation below). Fifth, the dissent argues the Second Amendment is “a federalism provision directed at preserving the autonomy of the sovereign states.” This is similar to saying the Second Amendment is similar to the Tenth Amendment. This issue was discussed above, that is why the difference between the conservative and liberal definition of “states” and “the people” in the Amendment are critical. Sixth, the dissent argues that states and cities should be able to “experiment” with laws that suit them since, for example, crime in urban areas is higher than rural areas. Hence, there is no need for one uniform gun law across the nation. This is where the liberals are really hypocritical. By elevating abortion as a fundamental right, the Court struck down hundreds of state laws that are highly differentiated mostly due to the vast difference between political and religious philosophies. In fact, the dissent quotes the majority opinion in United States v. Lopez (1995) claiming experimentation is needed “where the best solution is far from clear”. But Justices Stevens and Breyer both dissented in that case and did not agree that experimentation should be allowed (in that case). As pointed out above, all 50 states have different gun laws (experimentation is still possible, but it will face strict scrutiny).

I would go a step further and say people have the right to protect themselves and their families in the “privacy” of their homes. Remember, liberals used the fundamental right to privacy (Griswold v. Connecticut, 1965) to elevate other rights such as sodomy (Lawrence v. Texas, 2003), gay marriage (Obergefell v. Hodges, 2015), and abortion (Roe v. Wade, 1973). Conservatives are merely using judicial precedent put forth by liberals to protect the use of guns for self-defense. What comes around goes around. I do not think anyone would deny that self-defense is a fundamental right which is no different than Darwin’s “survival of the fittest” for all species. Furthermore, I do not think anyone would deny any means possible for any living species to defend themselves.

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