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.

and

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.

Two New Blogs on the Reading File

I have been remiss in not acknowledging some changes to the blog roll, so here goes:

Welcome to Eternity Road and to Way Up North. You can access these to fine blogs by going to the Reading File.

Thanks,

PolyKahr

Peering Ahead

The Curmudgeon over at Eternity Road today has an excellent post up, the third of three parts End Times for Freedom, Part 3, Peering Ahead. Your Curmudgeon details what I glossed over in
this post, and points out that at heart, all governments are essentially a criminal organization. To see the truth of this fact, just imagine all the things that the state does, for which you would be arrested and imprisoned, if not killed for doing. Can you legally run a lottery, even if it is for charity? But that is not the point of the article, that is just the lead in to explain what he is really getting at:

Your Curmudgeon's point here is twofold:

For some to possess power over the rest of us endangers us all;
The maintenance and increase of that power depends upon making us fear to oppose or ignore our rulers.

It's no longer possible, no matter what Saint Paul might think, to persuade private persons that submission to the State is morally obligatory. Nor does it take much thought or knowledge to realize that, whatever some might pretend, "our" State is a far greater threat to us than anything it purports to "protect" us from, including other States. What fear the State can engender in us must arise from other sources: its own power, and ominous but ill-defined forces of economics or meteorology against which free individuals and voluntary associations are supposedly helpless.

Our ruling class, as voracious a group as has ever afflicted any nation, knows this quite as well as your Curmudgeon.

Therefore, expect America's 88,000 governments, especially the one in Washington, to labor mightily to increase their power over us, and to fabricate additional spectres for us to fear. Watch for fresh assaults on the right to keep and bear arms. Watch for unprecedented exercises of police power, especially from federal agents. Watch for additional restrictions on the movement of money and the use of credit. Listen for indications that some new bug-bear, some chimera out of an apocalyptic fantasy, is being puffed up into a threat with which to justify the further expansion of State power. Each of these is a warning sign; each implies the necessary countermeasure.

Watch, listen, and prepare.

And pray.

And like St. Paul, you will probably have to show courage in the face of threats, and may have to sustain some abuse. Be prepared, and pray.

Opportunity Costs of Goofball Warmening

First up today is Jonah Goldberg, who has a piece at Townhall.com entitled Planet Bull's Eye. I especially liked the sarcasm in this quote:

The year is 2109. Celebrations continue as mankind's heroic, century-long, quintillion-dollar effort to lower the global mean temperature by 1 degree has paid off: July 2109 is just as hot as July 2009. Few can contain their jubilation.

But even as the carbon-neutral champagne corks fly, the sky darkens. A projectile of a different kind is coming our way. An asteroid streaks across the skies, giving the media just enough time to spread the word. The New York Times, now beamed directly into subscribers' brains via digital-neural networks, fulfills ancient prophecy and warns that women and minorities will be hardest hit by the incoming object.

While Goldberg doesn't say it, the point is that spending huge sums of money to do...well...nothing insures that there won't be funds to invest in something else. It is the idea of "opportunity costs", the money one could have invested in something else if one hadn't invested in this. Its Bastiat's things unseen. It's the thing you didn't do, and what effect that thing might have had on society. For a real look at what we are forgoing by "investing" in cap-and-tax, try this article by Fiona Kobusingye also at Townhall.com today. Kobusingye raises the point that because of Goofball Warmening fears, the UN is telling Ugandans not to develop. But each day they don't have modern facilities like electricity, fresh running water and sewage disposal systems people die prematurely. If money that is being proposed to be stolen from ordinary tax payers were used to provide power plants, water and sewage treatment systems, and roads in Africa instead of going to greedy rich men, it would at least be doing something rather than nothing.

Goldberg again:

It makes you wonder. For all the rush and panic, the truth is, climate change -- if real -- is a very slow-moving catastrophe. Moreover, it happens to align with an ideological and political agenda the left has been pushing for generations: Unregulated economic growth is bad and must be controlled by experts; nature is our master, and we must be her servants. What a convenient truth for environmentalists.

Indeed.

Green Hell

Finally for today, I bring you this interesting article form the London Times by Antonia Senior, Blunt warnings about greens under the bed. She makes an analogy between the Communists of old, and the Greens of today. It is not a perfect analogy, of course, but it does bring up a point that I have made several times: that if the Environmentalists can't convince you, then you will be forced. If you can't be nudged in their direction, then they will put a gun to your head.

Ideologies often credit man with either more nobility or more venality than he deserves. In reality he is a mundane creature. He wants a home for himself and those he loves, stocked with food. And he wants to have the right to control his own destiny, own his own stuff, and to acquire more if he can without interference or fear of imminent death. Such low-level acquisitive desires support high concepts: property rights and the rule of law, without which there would be no foundation for democracy.

My desire to live a free, mundane life is a fundamental cog in our messy, glorious, capitalist democracy. It is built on millions of such small entrenched positions. Red-filtered, my desires are despicable and bourgeois and must be beaten out of me with indoctrination or force. Green-filtered, my small desires are despicable acts of ecological vandalism. My house is a carbon factory. My desire to travel, to own stuff, to eat meat, to procreate, to heat my house, to shower for a really, really long time; all are evil.

She also points to the religious nature of both movements, again with an imperfect analogy, but apt none the less. In a world without world views, nuclear power would be seen as the greenest of the practical alternatives, assuming that anthropogenic global warming exists. That it is not displays the rigidity that has come to dominate the Green movement. It is not about finding a way out of what some claim to be a pickle, but about forcing people to live the way others want them to live.

The old two-cow analogy is a useful one. You have two cows. The communist steals both your cows, and may give you some milk, if you’re not bourgeois scum. The fascist lets you keep the cows but seizes the milk and sells it back to you. Today’s Green says you can keep the cows, but should choose to give them up as their methane-rich farts will unleash hell at some unspecified point in the future. You say, sod it, I’ll keep my cows thanks. Tomorrow’s green, the Bolshevik green, shoots the cows and makes you forage for nuts.

If the choice is between ecological meltdown, or a more immediate curtailment of our freedom, where do those of us who are neither red nor green, but a recalcitrant grey, turn? Back to those small desires, and a blinkered hope that the choice never becomes so stark. If it does, I’ll take my chances with Armageddon.

Krauthammer thinks Obamacare is sinking

Charles Krauthammer is one of my favorite columnists. Oh yes, I know he is anti gun, and a lefty, but I appreciate his clear thinking and logic on every issue he tackles. Health care is an issue he is particularly capable of tackling since he used to be a medical practitioner. In Townhall today, he has a great article on why Obamacare is sinking in which he blames politics as usual for the problem. Krauthammer:

This is not about politics? Then why is it, to take but the most egregious example, that in this grand health care debate we hear not a word about one of the worst sources of waste in American medicine: the insane cost and arbitrary rewards of our malpractice system?

When a neurosurgeon pays $200,000 a year for malpractice insurance before he even turns on the light in his office or hires his first nurse, who do you think pays? Patients, in higher doctor fees to cover the insurance.

And with jackpot justice that awards one claimant zillions while others get nothing -- and one-third of everything goes to the lawyers -- where do you think that money comes from? The insurance companies, who then pass it on to you in higher premiums.

But the greatest waste is the hidden cost of defensive medicine: tests and procedures that doctors order for no good reason other than to protect themselves from lawsuit. Every doctor knows, as I did when I practiced years ago, how much unnecessary medical cost is incurred with an eye not on medicine but on the law.

Tort reform would yield tens of billions in savings. Yet you cannot find it in the Democratic bills. And Obama breathed not a word about it in the full hour of his health care news conference. Why? No mystery. The Democrats are parasitically dependent on huge donations from trial lawyers.

Didn't Obama promise a new politics that puts people over special interests? Sure. And now he promises expanded, portable, secure, higher-quality medical care -- at lower cost! The only thing he hasn't promised is to extirpate evil from the human heart. That legislation will be introduced next week.

Pretty much says it all. Go and read.

Meanwhile, another favorite columnist also has a health care column today, also at Townhall.com. Thomas Sowell's article Magician Politics points out that Obama is trying to distract us from the fact that socialized medicine is going to cost us more by talking about insurance companies and the CEOs of big drug companies. But in an effort to lower some of the cost, the Obama administration may have an idea where to look (other than at trial lawyers of course.) A quote from Sowell's piece:

The government does not have some magic wand that can "bring down the cost of health care." It can buy a smaller quantity or lower quality of medical care, as other countries with government-run medical care do.

It can decide not to spend as much money on the elderly as is being spent now. That can save a lot of money-- if you think having a parent die earlier is a bargain.

The idea of a "duty to die" has been making some headway in recent years around the fringes of the left. It is perfectly consistent with the fundamental notion of the left, that decisions should be transferred from ordinary citizens to government elites.

And to lend credence to the thought that this is exactly what is planned under Obamacare, please read Michelle Malkin's piece today in Townhall.com entitled Ghoulish Science Plus Obamacare Equals Health Hazard. Malkin writes about one of the Czars Obama has appointed (without Senate advise and consent), John Holdren, and his long fascination with "population control." It is also worth a read.

Thune Amendment Not a Loss

Nikki has a post up analysing the "loss" on the Thune Amendment entitled It's not a loss for the gun lobby. Caution is in order however, as Nikki's posts are often rated R for strong language.

Frankly this still looks to me like a parliamentary move to slow down or impede progress. It certainly got Little Chucky Schumer all lathered up, which is always a good thing. Or maybe this amendment did exactly what it was designed to do, namely show the relative strength of those who feel that guns save lives. If that's the case, rest assured that the majority of Senators have gotten the message. Had we not been required to jump the 60 vote hurdle to overcome a filibuster, it would have passed.

UPDATE: Paul Valone, the Charlotte Gun Rights Examiner, and a man with a lot of experience watching corrup...er...North Carolina politicians at work has the real skinny on what went down with the Thune Amendment over here. I had wondered why our junior Senator, Democrat Kay Hagan had voted for the amendment, and now I know. Isn't politics wonderful?