Tag Archives: scalia

2nd Amendment and Gun Control, Part 1

There is a very strange argument that is made by politicians, the NRA gun manufacturing lobby and some others concerning the 2nd Amendment and the rights entailed therein. The argument goes like this:

The Second Amendment guarantees any person’s right to own any kind of weapon.

They take the 2nd Amendment and parse it out, emphasizing some of the words and ignoring others. Kind of like when Betsy asks me to take out the garbage. Me? Take out? OK , Let’s order a pizza.

“Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

They kind of skip the first 13 words and then start reading. Speed reading? Skimming for the general idea? Hmmmm.

The obvious intention of the founding fathers was that, in the 18th century, there would be times when the local government would need a call to arms. Maybe the injuns were coming or the Brits had decided to try to retake the village. Or perhaps the Canadians were on the march attempting to impose universal health care on our children and widows.

Hence the first 13 words. A well-regulated militia. Pretty clear. Well…regulated …militia.

Some folks, however, ignore those words. They don’t like them. The 13 words not only imply a strict government control over arms, they specify it. We may need a local militia, so you should keep a gun handy. That does not mean you can have a gun for any other reason.

Of course, if the founding fathers INTENDED that everyone should have access to a gun for any reason they had no need for those 13 words. They could have kept it much simpler, as in the 1st Amendment. Short and sweet.

So the first argument supporting the notion that anyone can have any kind of weapon for any purpose is easily shot down and understood by anyone with a modicum or more of cognitive ability.

Of course, because the Constitution is interpreted by the Supreme Court, it really does not matter what the founders were thinking. The Supreme Court decides what the words mean, not the founders.

And here we see an interesting phenomena. The conservative justices  who CLAIM to be “strict constructionists” have actually changed the meaning of the 2nd Amendment. Now, I don’t mind the Court trying to keep up with modern times. I think the Supreme Court should do so. But I do find the hypocrisy of the conservatives on the Court somewhat amusing.

These same justices who claim to interpret the Constituion based on the “original” document and words of the founders tend to let this one slip by. The “originalists” suddenly found, after more than 200 years , that the founders didn’t realy mean “militia” when they wrote “militia”. The majority opinion in the Heller decision goes through more contortions than a Chinese acrobat trying to justify that one. But, they had the votes. So be it.

The Heller decision, giving all of us the individual right to own a gun  states, in part:

“Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”

So, the founders were simply wrong when they wrote “well-regulated militia“. So much for the “strict constructionist” viewpoint.

But that’s ok. Everyone now has an individual right to own a gun. We all agree because the Supreme Court says so.

Which brings us to a second argument made by the NRA gun manufactuting industry and their employees in Congress. It goes like this.

Since I have the right to a gun, that means I have the right to ANY gun. And that means I can carry any gun anywhere I want. Therefore, no state or national government can make any laws restricting my right to own my gun or where I can wander around with it. Any government that does that is trying to take away my gun.

The obvious fallacy of that position is clear. If you want to think about it. It would mean that the only unlimited right granted to citizens by the government is the right to have a gun. All other rights have associated responsibilities and limits, but not my right to a gun. It places the 2nd Amendment in a different category than every other right.

Of course, that argument is easily refuted. Just look at the 1st Amendment. We have the right to free speech. It’s right there, in black and white. But that right is not unlimited. We have libel laws which restrain speech. We have regulations as to what words can be used on non-cable tv stations. We have slander laws. We have laws against threatening to kill others, especially political leaders. Try telling a joke about having a bomb in your backpack when you are boarding a plane and you will see how quickly your “free speech” is dealt with.

The same is true of freedom of  religion. You have the freedom to worship in the church or mosque or synagogue or basement of your choice. You can pray to anything you want to pray to. Some Native American churches are even allowed to void anti-drug laws because they have a longstanding use of peyote in their rituals. But if you are an Aztec and believe in human sacrifice, that is a no-no. A fundamentalist Mormon may believe he can have numerous child wives (and some do) but that is illegal. You can believe it is your right and religious duty as the “father” of the house to beat your kids and wife. But that is not tolerated. Limitations.

So, every right has legitimate, common sense restrictions. Even in the Heller case, the most conservative of the justices, Justice Scalia, pointed out that this right is not unlimited. Specifically stating, in his majority opinion, that schools and government buildings are places where restictions may be logically imposed. Also, certain categories of people, like felons, could be legally restriced from owning guns. Further, he stated that the government has the ability to restrict certain kinds of firearms, like military weapons, as well.

So, the idea that every person has an unlimited right to any type of gun he wants does not pass muster. Even the most conservative member of the Court, Justice Scalia,  recognized that, while you have an individual right to a weapon, that right is not without proper government restrictions.

In essence, the most radical arguments of the NRA gun manufacturing lobby and the extremists goes down the toilet.  The only question that remains is: What are reasonable restrictions?

2nd Amendment and Gun control, Part 2, next time.

https://www.law.cornell.edu/constitution/second_amendment

https://www.law.cornell.edu/supct/html/07-290.ZS.html

http://www.scotusblog.com/wp-content/uploads/2008/06/07-290.pdf

 

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Speaking Ill of the Dead

De mortuis nil nisi bonum.

Evidently the ancient Romans did not know Antonin Scalia.

I have no problem writing ill of Scalia. He’s dead. He won’t read this. And if he did I could care less.

Scalia was not, as his supporters like to claim, the voice of “conservatism” on the court. More likely, he qualifies as the voice of the “reactionaries”. Those who want to return to an imaginary past. He was not, as his supporters claim, a “strict constructionist” devoted to the Constitution. He was, in essence, a “reactionary” devoted to the Articles of Confederation.

You may recall that the Articles of Confederation were the first plan of government after the revolution. It gave massive power to individual states and little power to the central government. It guaranteed no rights nationwide. It was an abysmal failure. It was because the “states rights” concept  failed so miserably that the Constitution was formed.

Scalia was more devoted to the Articles than to the Constitution.  Some examples.

In 2000, in Bush v Gore. Scalia sided with the 5-4 majority is overturning the Florida Supreme Court.That  Florida court had ruled that it was necessary to recount the Florida voted because under Florida Constitution and law a vote so close had to be recounted. The Florida Supreme Court wanted to get it right.

Scalia, siding with the majority, supported the very odd decision that counting all the votes fairly would impact negatively on the Bush campaign. The vote count was stopped. The right of the state of Florida to follow its own election laws was overturned by the SCOTUS.  Justice Scalia had a son who was in the lawfirm directly involved in the Bush appeal to the SCOTUS, which should have been a reason for his recusal.

Scalia opposed the right of citizens to health care under the ACA. He used a rather foolish broccoli analogy to suggest that the federal government had no right to implement any law requiring people to..well..do anything.  (Actually, Scalia was the prime target of a 2012 blog post on this matter….    https://josephurban.wordpress.com/2012/04/11/scalia-and-the-broccoli-conundrum/)

Scalia opposed the rights of gays to marry. He took the position that only the individual states can decide on whether or not an adult can marry. State’s rights, ignoring the amendments guaranteeing equal protection under the laws.

Perhaps the strangest case ever for someone who claimed to be a “strict constructionist”  was the Citizens United fiasco. Overturning federal law to regulate money in politics. The decision basically created a new class of citizens, called “corporations”. According to Scalia, corporations had first amendment rights to spend money on candidates. No where in the Constitution is there any indication that the founding fathers sought to make corporations “persons” in the same sense as you and I are persons. this was a complete contortion of the reason for the Bill of Rights in the first place. To protect INDIVIDUALS from governmental power. Another example of Scalia claiming to be a “strict constructionist” and then ignoring the Constitution.

And, adding to this fantasy. A corporation called Hobby Lobby was granted “religious” reasons for not providing adequate health care to its employees. A total perversion of the meaning of the First Amendment. And Scalia was there. Leading the charge.

Scalia consistently refused to support individual rights. He opposed a woman’s right to abortion He supported overturning the Voting Rights Act. He supported the idea that individual states could deny classes of citizens certain rights. He was the most reactionary justice since WW2, perhaps since the Civil War. There is no doubt that he would have been very comfortable voting with the majority in the Dred Scott case. After all, slavery was a “state’s rights” issue.

So. I speak ill of the dead. But, in fairness to me, I spoke ill of him when he was alive. His death does not make his decisions any more palatable. The fact that he has passed from political power can only be seen as a positive step for individual rights. His loss is not one to mourn.

 

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Scalia and the Broccoli Conundrum

 

According to the transcript of the Affordable Care Act debate before the Supreme Court, Justice Antonin Scalia used broccoli in one of his analogies. Specifically, if the government can force a person to buy health insurance, couldn’t the government force a person to eat broccoli. I think this will go down in the annals of Supreme Court history as the “Broccoli Conundrum”.
I will be the first to admit that I have not read the entire transcript of the arguments, so I may be taking his statement out of context. But that is acceptable. I simply follow Mr. Scalia who has admitted he has not read the law he will be rendering judgment on. So, following his lead, I will limit my comments and analysis to the broccoli.
His analogy was a simple one. Worthy of any 9th grade social studies student. Clear. Uncomplicated. Unfounded. And missing the point entirely. Let us examine.
He compares a requirement to pay a fee or tax to the force feeding of a specific food. Shoving something down someone’s throat is hardly analogous to charging a fee. Yet, giving Antonin the benefit of the doubt, let’s examine this idea. He has drawn the conclusion that if the government can force one to pay a fee for insurance, it can then force any behavior. As I said, not bad for a 9th grader. Not good for someone who fancies himself a legal scholar.
One weak point in the analogy is obvious. While the government mandates that an individual purchase insurance, there is no mandate to actually use the insurance. There is no physical coercion. No penalty for not seeing a doctor. No one is forced to have an operation. It is simply a financial burden.
The government is replete with similar financial burdens. For example, I am forced to pay taxes or fees for the interstate highway system, parks, dams, bridges and other government enterprises. The government does not force me to use the highways. I may never directly benefit from or use these, but I am required to pay my fair share. I am also required to pay Medicare and Medicaid taxes, though I am not a recipient of those services.
I am forced to subsidize the oil and other energy industries, the military, churches and other non-profits and a host of others who receive tax breaks. I make up the difference. And receive no direct benefit.
I am not complaining. I fully understand (as our imaginary 9th grader has yet to comprehend) that as a member of society we all need to pull our weight. All of us. And each of us pays fees or taxes for things which we do not approve.
Back to broccoli. Can the government force me to eat broccoli? In a sense, yes. The government can force feed individuals, against their will. And if I fail to provide food for my children, the government can force me to do so, or take away the kids. In fact, should I choose to die by starvation , the government will not allow it. It will demand that I be force fed against my will. So, in that sense, the government does have a right to force me to eat my broccoli.
Today we have governments that are forcing women to undergo vaginal probes. Forcing employees to give blood for drug testing. Forcing men and women to take alcohol tests. Even force men and women to go overseas to fight and die. The list is pretty long. And I have yet to hear Antonin utter complaints about those intrusions.
So, Justice Scalia’s simplistic analogy falls flat. The answer, Antonin, is “Yes”. We live in a society. We share the fruits, we share the burdens. The government has , for many years, forced us to do things far more personal and more intimate than another tax.
So, Tony, remember what your mother said. “Eat your broccoli, it’s good for you”. And pay your taxes.

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