George Will: Privileges, Guns and the Court

realclearpolitics.com ^ | March 7, 2010 | George Will

[neverdem]

WASHINGTON -- It is said, more frequently than precisely, that the reasons the Supreme Court gives for doing whatever it does are as important as what it does. Actually, the court's reasons are what it does. Hence, the interest in the case the Supreme Court considered last week...

--snip--

And even Justice Antonin Scalia, who recognizes that "substantive due process" is intellectual applesauce, thinks it is too late to repudiate 137 years of the stuff...

--snip--

First, protecting the individual's right to keep and bear arms for self-defense was frequently mentioned by those who drafted and ratified the 14th Amendment, the purpose of which was to protect former slaves and their advocates from being disarmed by state and local governments determined to assault their security and limit their autonomy.

Second, the central tenet of American political philosophy is that government is instituted not to bestow rights but to protect pre-existing rights, aka natural rights -- those essential to the flourishing of our natures. In its 2008 decision, the court affirmed that the Second Amendment did not grant a right to keep and bear arms, it "codified a pre-existing right."

Third, "privileges or immunities" are all those rights that, at the time the 14th Amendment was ratified, were understood to be central to Americans' enjoyment of the blessings of liberty.

Liberals might hope and conservatives might fear that a revivified "privileges or immunities" clause wielded by liberal justices would breed many new "positive rights" -- to welfare, health care, etc. But conservatives know that "substantive due process" already has such a pernicious potential. And they believe that if -- a huge caveat -- it remained tethered to the intent of its 19th-century authors, the "privileges or immunities" clause would be useful protection against the statism of the states.

[neverdem]

The normally anti 2nd Amendment George Will, yes George Will is on record being in favor of gun control, makes a decent argument for the "privileges or immunities" clause of the 14th Amendment. Go figure.

[Carry_Okie]

The normally anti 2nd Amendment George Will, yes George Will is on record being in favor of gun control, makes a decent argument for the "privileges or immunities" clause of the 14th Amendment. Go figure.

That stench wafts with reason.

Unlike most FReepers, I am not exactly thrilled with a incorporating the 2A under the 14th, in part because trusting any "higher authority" is fraught with many perils. For the SCOTUS to rule on the 2A means that enforcement falls under the same power as could accede to an illegitimate treaty. As things are now, the BATF is for the most part unconstitutional while the rest is up to the States. Without that nexus, if the Senate "ratifies" a bogus treaty, the States should just thumb their noses and arm their militias. Should the court "change" and revisit the case, we will regret ever having brought it for we will have legitimized the process and jurisdiction by advocating for the prior ruling.

[Abundy]

surprising...but he should get credit for intellectual integrity on this issue.

[The Magical Mischief Tour]

June can’t get here fast enough.

[lewislynn]

The normally anti 2nd Amendment George Will, yes George Will is on record being in favor of gun control, makes a decent argument for the "privileges or immunities" clause of the 14th Amendment. Go figure.

He's still a pompous dick and I don't trust him.

[HiTech RedNeck]

At least this pompous “richard” is only a syndicated writer, not a politician with power.

[cowtowney]

Ditto

[ICE-FLYER]

I have to agree with you. The 2nd Amendment is for the Federal government to obey, the linking via the 14th is scary at best because if the 2nd in the Bill of Rights must be enforced by all states as it is on the federal it sets up for the potential (a ver real potential) of federal abuse by other legislative means. It is realsitic to suggest that our states governments could become nothing were we to take this to ultimate conclusion. After all, all that has to happen is enough senseless idiots full of themselves and drunk on power like the current Democrat party and give them another short at supermajority then start making Amendments to the constitution that squeek past in enough legislatures to then set up the state as the arbiter of all rights...and not God, from whom all our rights come as per our declaration.

Your thoughts?

[HiTech RedNeck]

If you’re talking about an effort on the scale of amending the US Constitution, anything is possible. That’s what amending means.

The big problem is the way our present day Rats read rights as positive social entitlements rather than negative prohibitions on government encroachment. This is a stupid philosophy but if pressed will create all manner of havoc. The 1st Amendment doesn’t require me to be furnished with a printing press and the 2nd Amendment doesn’t require me to be furnished with a rifle. But they think Roe v. Wade, bad enough as it is of itself, requires any girl to be furnished with an abortion.

[scooby321]

The normally anti 2nd Amendment George Will, yes George Will is on record being in favor of gun control, makes a decent argument for the "privileges or immunities" clause of the 14th Amendment. Go figure.

Leave that Clause out

[ICE-FLYER]

That example really is enlightening. I will have to use it as it completely reveals what the left sees government for...total provision and regulation to the point of slavery.

[Elsie]

First, protecting the individual's right to keep and bear arms for self-defense was frequently mentioned by those who drafted and ratified the 14th Amendment, the purpose of which was to protect former slaves and their advocates from being disarmed by state and local governments determined to assault their security and limit their autonomy.

Second, the central tenet of American political philosophy is that government is instituted not to bestow rights but to protect pre-existing rights, aka natural rights -- those essential to the flourishing of our natures. In its 2008 decision, the court affirmed that the Second Amendment did not grant a right to keep and bear arms, it "codified a pre-existing right."

 

 

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"For where you have envy and selfish ambition, there you will find every disorder and evil practice."

 James 3:16

 

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hen in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

 

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security. — Such has been the patient sufferance of these colonies; and such is now the necessity which constrains them to alter their former systems of government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states. To prove this, let facts be submitted to a candid world.

He has refused his assent to laws, the most wholesome and necessary for the public good.

He has forbidden his governors to pass laws of immediate and pressing importance, unless suspended in their operation till his assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other laws for the accommodation of large districts of people, unless those people would relinquish the right of representation in the legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved representative houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the legislative powers, incapable of annihilation, have returned to the people at large for their exercise; the state remaining in the meantime exposed to all the dangers of invasion from without, and convulsions within.

He has endeavored to prevent the population of these states; for that purpose obstructing the laws for naturalization of foreigners; refusing to pass others to encourage their migration hither, and raising the conditions of new appropriations of lands.

He has obstructed the administration of justice, by refusing his assent to laws for establishing judiciary powers.

He has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of new offices, and sent hither swarms of officers to harass our people, and eat out their substance.

He has kept among us, in times of peace, standing armies without the consent of our legislature.

He has affected to render the military independent of and superior to civil power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his assent to their acts of pretended legislation:

For quartering large bodies of armed troops among us:

For protecting them, by mock trial, from punishment for any murders which they should commit on the inhabitants of these states:

For cutting off our trade with all parts of the world:

For imposing taxes on us without our consent:

For depriving us in many cases, of the benefits of trial by jury:

For transporting us beyond seas to be tried for pretended offenses:

For abolishing the free system of English laws in a neighboring province, establishing therein an arbitrary government, and enlarging its boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule in these colonies:

For taking away our charters, abolishing our most valuable laws, and altering fundamentally the forms of our governments:

For suspending our own legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated government here, by declaring us out of his protection and waging war against us.

He has plundered our seas, ravaged our coasts, burned our towns, and destroyed the lives of our people.

He is at this time transporting large armies of foreign mercenaries to complete the works of death, desolation and tyranny, already begun with circumstances of cruelty and perfidy scarcely paralleled in the most barbarous ages, and totally unworthy of the head of a civilized nation.

He has constrained our fellow citizens taken captive on the high seas to bear arms against their country, to become the executioners of their friends and brethren, or to fall themselves by their hands.

He has excited domestic insurrections amongst us, and has endeavored to bring on the inhabitants of our frontiers, the merciless Indian savages, whose known rule of warfare, is undistinguished destruction of all ages, sexes and conditions.

In every stage of these oppressions we have petitioned for redress in the most humble terms: our repeated petitions have been answered only by repeated injury. A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.

Nor have we been wanting in attention to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. We must, therefore, acquiesce in the necessity, which denounces our separation, and hold them, as we hold the rest of mankind, enemies in war, in peace friends.

We, therefore, the representatives of the United States of America, in General Congress, assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name, and by the authority of the good people of these colonies, solemnly publish and declare, that these united colonies are, and of right ought to be free and independent states; that they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain, is and ought to be totally dissolved; and that as free and independent states, they have full power to levey war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do. And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.

[gunnut]

That is when you water the tree of liberty.

[ICE-FLYER]

precisely

[editor-surveyor]

"I have to agree with you. The 2nd Amendment is for the Federal government to obey..."

The second is for all to observe. - The constitution did not create the right recognized in the second; it merely stated that it existed, and an existing right is not to be infringed.

That POV came not from the Federal government, but from the states, for it was the states, and thereby the people, that were the authors of the constitution.

The right recognized is not dependent upon the constitution for its existance, and stands above all government, as instituted by the sovereign of the universe; thus the constitution and the ammendments are irrelevant to the question. The right stands on its own merit by the testimony of the several states.

[Carry_Okie]

The second is for all to observe.

This is not about where rights originate, but in who enforces that right.

The power to enforce is sufficient power to violate.

[ICE-FLYER]

The right being pre-existantis acknowledged but the restriction on infringement points at the federal government only. For it to apply to the states assumes that the prohibition against infringment is not needed to be addressed in state constitutions. now, many states have a like amendment or expressed point in their constitutions. This in some states before the US Constitution ratification in 1789 and many after.

So which is it? The constitution recognizes the right and expressly forbids infringment...but as I see its recognition fo the right is universal but the infringment clause is against the Federal Government....It is what the states feared.

The problem with this is that todays scum liberals would LOVE to use this methodology to say that NY, for instance, can legislate as it sees fit on guns. It does run into the declaration of the right, but clearly New York’s infringment has been ongoing for many years as they very much restrict guns.

Should the Supreme Court come back and overturn the law they are looking at on the basis of universl application then we subject all state constitutions to its verdict.

Your thoughts?

[editor-surveyor]

The anti-infringment clause is unnecessary, in that a right cannot be infringed with or without it. It is the job of the court to stop the infringement of any right (not to be confused with an imaginary ‘entitlement’) of any kind wherever it may be occuring.

The mistake that is being perpetuated is the reliance on the second ammendment, which was never anything more than a notice of an existing condition. (not that I’m not glad that that notice was included)

The Declaration of Independance, which is the instrument that permitted both the state, and the federal governments to be formed, is the defining power. This is what the war of independance was fought for, and the foundation of both the secular and cultural elements of the nation.

[editor-surveyor]

It is my contention that reliance on the second ammendment is fallacy, and a general red herring.