RIGHTING "WRONGS" BASED ON WRONG INTERPRETATIONS OF "RIGHTS"
November 23, 2010
Socialists, from President Obama on down, look at the government as the creator and administrator of rights. That is why even some on the left liked the Heller and the McDonald decisions which overturned gun bans in Washington, DC and Chicago.
Don’t get me wrong, I’m ecstatic that the Supreme Court ruled against these the gun bans in these two cities. And I’d rather be in our shoes today than in the Brady Campaign’s -- as they saw their arguments slapped down harshly by the Court.
So why then would some big-government types like these two decisions -- especially the McDonald case out of Chicago? Because in basing their decision upon the Due Process Clause of the 14th Amendment, the Justices perpetuated a false doctrine which has allowed the Constitution to continue evolving.
The Due Process clause is the place where judges invent rights and then decide how much the government can control them.
Gun Owners of America argued that the Court should have based its decision on the Privileges or Immunities Clause of the 14th Amendment. The Court would have then been using a definitive clause dealing with rights of citizenship rather than the amorphous “substantive” Due Process Clause where Courts have run wild and seldom come to constitutionally-based conclusions.
Justices love the Due Process Clause because it has been interpreted in such a way to allow judges to twist the Constitution to fit their big-government world view. They love this approach because they love righting “wrongs” based on what they THINK are “rights.”
President Obama complained on a Public Broadcasting radio interview, when he was a state senator, that the Constitution only protects negative rights and that such a limitation (in his view) must be overcome. Obama made it quite clear that a constitutional republic that is governed by our Constitution is antithetical to his socialism. He talks of a right to health care, and a right to a comfortable living, and, well, a right to anything the left thinks will help buy votes.
Indeed, the role of government in the Founders’ Constitution is to protect liberty, and no more. Socialists want government to provide for everything, making the people dependent, even at the expense of liberty.
The left is hoping to pit their understanding of the 14th Amendment where courts create rights against the Tenth Amendment. They argue that the Fourteenth Amendment, being enacted after the Tenth, trumps the earlier amendment. That is why they are so eager to inject their view of government-created rights into the 14th Amendment.
If the government is the creator of rights, then the government must be protected from the people. That means they cannot allow any notion that the Second Amendment is intended to be a check on the unconstitutional exercise of federal power. The constitutional militia was intended to be an instrument of the states to protect their citizens from the federal government (by legal definition throughout the colonies). All freemen were required to own military long arms.
Wyoming is on the right path. Wyoming has a Firearms Freedom Act which “interposes” Wyoming against all federal laws involving a firearm made in the state and which remains in the state. Unlike the other seven states with identical laws, Wyoming makes violation of the act by a federal official a state offense punishable by up to 365 days in jail. Had they added one more day to the potential penalty, any conviction would result in the loss of gun rights under 18 USC 922(g) for any federal official who violates their law.
States and county sheriffs are going to need to take the militia clauses of the Constitution seriously. Sheriff Joe Arpaio of Maricopa County (Phoenix), Arizona has a posse of 3,000. If Arizona were to create a State Guard and encourage sheriffs to beef up their posse strength to levels analogous to Maricopa County, and if other states were to follow suit, the federal government would be less inclined to assume that there are no limits to their powers.
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Such an outcome will not come about until we understand that there is no conflict between the Tenth and the Fourteenth Amendments, and that rights come from God, not from government. Government-made “rights” are the “wrong” rights.
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