Wednesday, June 30, 2010

I Was Wrong, Thomas Is Right

Inconsistency is the sign of a failed argument as my friend James White has said on many occasions. Well, I must confess, I have been inconsistent in my understanding of the Constitution.

For years I have struggled with the First Amendment's Establishment clause. It has seemed to me that it only applied to the Federal Government. Yet for years, I have argued that the Second Amendment applies to both states and localities as well as the Federal Government. Why? Because it seemed obvious to me that without the fundamental right to bear arms, governments and other organizations could easily overthrow liberty.

Yet it is precisely here that I have struggled with my understanding. For my most Liberal friends would point out to me my blatant inconsistency. Of course, I would point out their inconsistency as well, only in reverse.

The recent High Court's decision has been getting the most ridiculous media coverage. Every story is entitled, "Supreme Court extends gun rights to states", or something to that effect. In this Washington Times Story, you would think that the Majority had no arguments against the minority. That just by fiat, they reinterpreted the Constitution. As the article states,

Justice Stephen G. Breyer said he could "find nothing in the Second Amendment's text, history, or underlying rationale that could warrant characterizing it as fundamental' insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes."

"Nor can I find any justification for interpreting the Constitution as transferring ultimate regulatory authority over the private uses of firearms from democratically elected legislatures to courts or from the states to the federal government,"
This statement coming from the Court's Left sounds conservative! Yet they would never apply this standard to their own political um...I mean decisions that support Modern Liberalism.

Yet the Majority did actually defend the notion that the Second Amendment applies to States is not new, but you would have no idea from the article that Thomas shows our inconsistencies. For instance the article ends with a statement about Justice Thomas,

Justice Thomas penned another concurring opinion that supported a fresh interpretation of the privileges and immunities clause.
That's it! Yet Thomas has written an opinion that should shame us all for our inconsistent thinking. It sure would be nice if these articles would link to the Court's decision. It is telling to me that they don't. You would also think they would be taking on Thomas since he starts his opinion by stating,

I agree with the Court that the Fourteenth Amendment makes the right to keep and bear arms set forth in the Second Amendment “fully applicable to the States.” Ante, at 1. I write separately because I believe there is a more straightforward path to this conclusion, one that is morefaithful to the Fourteenth Amendment’s text and history.
A more "straightforward path" simply means that he is going to argue that history bears out his position clearly. He states a few pages later,

As was evident to many throughout our Nation’s early history, slavery, and the measures designed to protect it, were irreconcilable with the principles of equality, government by consent, and inalienable rights proclaimed by the Declaration of Independence and em-bedded in our constitutional structure.
What principles?

Chief among those cases is United States v. Cruikshank, 92 U. S. 542 (1876). There, the Court held that members of a white militia who had brutally murdered as many as 165 black Louisianians congregating outside a courthousehad not deprived the victims of their privileges as American citizens to peaceably assemble or to keep and bear arms. Ibid.; see L. Keith, The Colfax Massacre 109 (2008). According to the Court, the right to peaceably assemble codified in the First Amendment was not a privilege of United States citizenship because “[t]he right . . . existed long before the adoption of the Constitution.” 92 U. S., at 551 (emphasis added). Similarly, the Court held that the right to keep and bear arms was not a privilege of United States citizenship because it was not “in any manner dependent upon that instrument for its existence.” Id., at 553. In other words, the reason the Framers codified the right to bear arms in the Second Amendment—its nature as an inalienable right that pre-existed the Constitution’s adoption—was the very reason citizens could not enforce it against States through the Fourteenth.

That circular reasoning effectively has been the Court’slast word on the Privileges or Immunities Clause.1
Circular indeed! I was wrong. I would never argue that the Freedom of the Press or Free Speech did not apply to States. So why then why apply it to the Second Amendment? I mean really? Thomas has written a very persuasive argument. Slaves in the South faced some of the most horrific and brutal assaults on their lives. It is precisely the fact that in order to maintain slavery, the fundamental right to bear arms must not be granted to blacks. How else could families be so easily broken up and children to never be seen again by their parents? Simply deny them Liberty by denying them the tools to uphold Liberty!

So in conclusion,I have learned some great history thanks to Justice Thomas. No longer will I hold to the inconsistent views that I have held in the past. You want religious freedom? You want Liberty? Buy a gun and keep it loaded!

No comments: