What Rights Does Judge Sotomayor See

Jeff Snyder, the author of "A Nation of Cowards: Essays on Gun Control" wrote a piece back in 2001 for the Freeman entitled Rights Without Exception. If you have ever read "A Nation of Cowards" or if you ever read any of his columns in American Hangunner, you will know that he stands on principles in his writings. In this article, he discusses how our rights should be viewed by the courts, and contrasts that with how they are actually treated. I would note that the examples used are often gun rights, the right to keep and bear arms. In the latter half of the twentieth century, gun rights have become the canary in the coal mine. The courts have put free speech rights on an alter, allowing the most odious of expressions to pass, as long as they could find some redeeming value in what was said. On the other hand, the courts have generally treated gun rights as the red hair step child, who had earned whatever punishments society wished to rain down on it. But if the courts can interpret the Second Amendment out of existence, is there any hope to retain the other nine rights in the Bill of Rights? Ponder that as the Senate votes on the Sotomayor nomination.

The statements of rights in the Bill of Rights are categorical and contain no exceptions. This form suggests that the rights referred to do not vary to suit the circumstance, are not to be “outweighed” in balancing tests with other rights or interests, and are not subject to unstated exceptions: Congress shall make no law abridging the freedom of speech or of the press; the right to keep and bear arms shall not be infringed; the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and so forth. Qualifications such as, “unless presenting a clear and present danger,” “except to the extent inconsistent with public safety,” or “unless outweighed by a compelling state interest” simply are not there.

Along the way, he first disposes of such silly arguments as the one that says if you truly have a right to keep and bear arms then that would include keeping a nuclear bomb. Yes, believe it or not when I have argued that the right to keep and bear arms includes machine guns, people have extrapolated that I was also arguing for keeping nuclear bombs and artillery pieces. I was not, and neither is Snyder.

In discussing whether there are legitimate exceptions to our rights, he discusses the "felon exception" at length. At the time of the founding, as pointed out, felonies were truly egregious crimes punishable by death. From that perspective, a "felon exception" really wasn't needed. But now that so many crimes, many malum prohibito-that is wrong because we say so, are felonies, one has to ask whether a "felon" who has paid his debt to society does not have the right to self defense in his home? For example doesn't Martha Stewart deserve to have aright to self defense? Do you really think she is likely to murder someone? Think how the "felon exemption" works in favor of anti-gun legislators. They know that a convicted felon may not own a gun. Therefore, the more behavior they can define as felonious, the more individuals they can put on the prohibited persons list, while looking tough on crime to their constituents.

Can a convicted felon be denied his right to free speech or freedom of the press? Can he be denied the right to assemble or to the free exercise of his religion? May convicted felons be subject to unreasonable and warrantless searches and seizures? May they, on arrest for a subsequent crime, be denied due process of law and the right to trial by jury; and, when convicted, may they be subject to cruel and unusual punishment? Surely crime would plummet if these rights, too, were subject to a felon exception for the sake of public safety, and if the police could summarily execute felons they suspected of committing crimes. But if those rights must be respected, why is the right to keep and bear arms a different kind of right that admits of such an exception?

Clearly, he is arguing that it is not a different kind of right. As David Codrea has pointed out, and I paraphrase here, if a man can not be trusted with a gun, he can not be allowed out without a custodian.

Well, what about majority rule then. Can't we all let our rights be decided democratically? I know from reading much of Snyder's other writings, that he holds a special scorn for this line of thinking.

The problem is that an exception has been introduced to the right whose scope is defined by action of the majority (through legislative action and subsequently through a majority of a panel of judges). That is fatal to the right because it makes the right a captive of majority rule.

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So first we may note that if a right in the Bill of Rights is subject to an exception whose scope is defined by action of the majority (the legislative process), the right has been rendered subject to the will of the majority. That is, it has ceased to exist and has become a creature of legislative grace.

That is to say, your rights under this scheme, are defined by whatever your neighbors say are your rights. It is variable from one day to the next, and highly dependent on who you are. This means you really don't have rights at all.

Try to determine how far the government could go on grounds of public safety. For example, why is there an interest in public safety only in government buildings, airports, and school zones? Why not hospitals—indeed, all public property and all businesses open to the public? If you find a stopping place that leaves any private person with the right to keep and bear arms, explain why the concept of “public safety” indicates that you must stop there and not go any further.

Well, if we can't limit or restrict rights by majority rule, what about interpreting the purpose of rights? This seems like fertile ground for finding the limits of rights.

Another way in which rights are often limited is to “interpret” them in light of the purpose they are supposed to achieve. For example, those who oppose the private ownership of arms sometimes assert that the purpose of the Second Amendment is related to the maintenance of militias. Since militias no longer exist and are a discredited and ineffectual means of securing the common defense in the modern world, the Second Amendment has been rendered obsolete and and may therefore be ignored. Is this a legitimate way of imposing a limitation on the scope of a right, of rendering it less than absolute?

While the “interpretation” cited above is a misreading of both the words and history of the Second Amendment, the effect of interpreting a right by reference to its purpose is nonetheless revealed: it, too, leads to the destruction of the right!

What we are left with is that the rights enumerated in the Bill or Rights are fundamental, can not be ignored, or legislated away, or "interpreted" out of existence.

With the foregoing, then, I hope to have provided some basis for advancing the following claim: A right, to be a right, must be absolute, that is, subject to no exceptions, and held or respected as an end in itself, not as a means to some other end. Otherwise, it does not stand outside and above the law, but becomes subject to it, a mere creature of legislative action, majority rule, and the peripatetic opinions of judges. If the right is not absolute, you absolutely have no right.

As I said at the beginning, Senators should think about this as they vote on the Sotomayor nomination. Judge Sotomayor claims not to see a right to self defense in the Constitution. One wonders what other rights she does not see there.