Tag: second amendment

“If You’re Not Having Fun Advocating for Freedom, You’re Doing it Wrong!”

The health care debate has catalyzed a wonderful national clash of cultures centering on freedom versus control. Here’s one example that’s both complex and delightful.

Progressive site TalkingPointsMemo ran a story yesterday about a man named “Chris” who carried a rifle outside an event in Phoenix at which President Obama appeared. “We will forcefully resist people imposing their will on us through the strength of the majority with a vote,” Chris said.

To many TPM readers, this kind of thing is self-evidently shocking and wrong: Carrying a weapon is inherently threatening, Second Amendment notwithstanding. And vowing to resist the properly expressed will of the majority—isn’t that an outrageous denial of our democratic values?

Well, … No. Our constitution specifically denies force to democratic outcomes that impinge on freedom of speech and religion, on bearing arms, and on the security of our persons, houses, papers, and effects, to name a few. Our constitution also tightly circumscribed the powers of the federal government. Those restrictions were breached without abiding the supermajority requirements of Article V, alas.

There are many nuances in this clash of cultures, and it’s fascinating to watch the battle for credibility. One ugly issue is preempted rather handily by the fact that Chris is African-American.

Next question, taken up by CNN: Was the interview staged? Hell, yeah! says Chris’ interviewer. And they know each other—big deal.

Finally, they were laughing and having a good time. Isn’t this serious? Yes, it is serious, says Chris’ interviewer, but “If you’re not having fun advocating for freedom, you’re doing it wrong!”

It’s a great line—friendly, in-your-face advocacy that might just succeed in familiarizing more Americans with the idea of living as truly free people.

Today Talking Points Memo is charging that the man who interviewed Chris was a prominent defender of a militia group in the 90s, some members of which were convicted of crimes. I know nothing of the truth or falsity of this charge, and I had never heard of the militia group, the interviewer, or his organization before today.

This struggle over credibility is all part of the battle between freedom and control that is playing itself out right now. It’s an exciting time, and a chance for many more Americans to learn about liberty and the people who live it.

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Update on the Sotomayor Hearings

After yesterday’s bloviating—much reduced by Joe Biden’s departure from the committee—today we’ve gotten into some good stuff. Sotomayor is obviously well-prepared. She speaks in measured, dulcet tones, showing little emotion.

Judiciary Committee Chairman Leahy gave her the opportunity to explain herself on Ricci and on the “wise Latina” comment—which she has repeated in public speeches at least six times going back 15 years—and then built up the nominee’s background as a prosecutor and trial judge. Ranking Member Sessions and Senator Hatch (himself a former chairman of the committee) pounded Sotomayor on Ricci, asking her how she reconciles a race-based decision with clear Supreme Court precedent—and how her panel decided the case in two paragraphs despite the weighty statutory and constitutional questions.

Sessions in particular pointed out the inconsistency between her statement yesterday that she was guided by “fidelity to the law” and her history of calling the appellate courts as being the place where “policy is made” and profession of inability to find an objective approach of the law divorced from a judge’s ethnicity or gender. Sotomayor’s responses were not convincing; rather than agreeing with Justice O’Connor’s statement that a wise old man and a wise old woman would come out the same way on the law, the “wise Latina” comment plainly means the exact opposite.

And so the back-and-forth continues. One refreshing thing I will note is that only twice has the nominee said she can’t answer a question or elaborate on a response: on abortion, saying Griswold, Roe, and Casey are settled law; and on guns, declining to discuss whether the constitutional right to bear arms can be used to strike down state (as opposed to federal) laws. The former is a clear—but not unexpected—cop-out because, unlike a lower court judge, the Supreme Court justice revisits the nature and scope of rights all the time. The latter is actually the correct response in light of the three cert petitions pending before the Court in the latest round of Second Amendment litigation. Still, her discussion of the Second Amendment left much to be desired given her ruling in Maloney; as Jillian Bandes pointed out recently, you can’t discuss incorporation without a solid understanding of Presser.

CP Townhall

Barnett on the Supreme Court Confirmation Hearing

Cato senior fellow Randy Barnett has a piece in the Wall Street Journal on the Senate’s confirmation hearing for Obama’s nominee to the Supreme Court.  Excerpt:

Supreme Court confirmation hearings do not have to be about either results or nothing. They could be about clauses, not cases. Instead of asking nominees how they would decide particular cases, ask them to explain what they think the various clauses of the Constitution mean. Does the Second Amendment protect an individual right to arms? What was the original meaning of the Privileges or Immunities Clause of the 14th Amendment? (Hint: It included an individual right to arms.) Does the 14th Amendment “incorporate” the Bill of Rights and, if so, how and why? Does the Ninth Amendment protect judicially enforceable unenumerated rights? Does the Necessary and Proper Clause delegate unlimited discretion to Congress? Where in the text of the Constitution is the so-called Spending Power (by which Congress claims the power to spend tax revenue on anything it wants) and does it have any enforceable limits?

Read the whole thing.

The Sotomayor Hearings

judgesotomayorNothing has changed in the six short weeks since Sonia Sotomayor was nominated to the Supreme Court: she remains a symbol of the racial politics she embraces. While we celebrate her story and professional achievements, we must realize that she – an average federal judge with a passel of unimpressive decisions – would not even be part of the conversation if she weren’t a Hispanic woman.

As Americans increasingly call for the abolition of affirmative action, Sotomayor supports racial preferences. As poll after poll shows that Americans demand that judges apply the law as written, the “wise Latina” denies that this is ever an objective exercise and urges judges to view cases through ethnic and gender lenses.

At next week’s hearings, Sotomayor will have to answer substantively for these and other controversial views – and for outrageous rulings on employment discrimination, property rights, and the Second Amendment. To earn confirmation, she must satisfy the American people that, despite her speeches and writings, she plans to be a judge, not a post-modern ethnic activist. After all, a jurisprudence of empathy is the antithesis of the rule of law.

One Year After Heller

One year ago today, the Supreme Court handed down its decision in District of Columbia et al. v. Heller. The decision affirmed the Second Amendment as protecting an individual right to keep and bear arms and invalidated the District of Columbia’s draconian gun control regime.

The case generated a storm of media attention. The Cato Institute filed an amicus brief, one of nearly four dozen in the case.

The Cato Institute held a forum for Brian Doherty’s book chronicling this victory for liberty, Gun Control on Trial: Inside the Supreme Court Battle Over the Second Amendment. The Heller case also figured prominently in Cato multimedia from Robert A. Levy and Clark Neily.

Heller did not settle all of the questions related to the right to keep and bear arms. The incorporation of the Second Amendment against state bans and regulations is currently being litigated across the country. A three-judge panel in the Court of Appeals for the Ninth Circuit held that the Second Amendment is incorporated against the states. The Seventh Circuit and Second Circuit disagreed. Supreme Court nominee Sonia Sotomayor was on the Second Circuit panel that declined to incorporate the Second Amendment, and Roger Pilon notes that this may play into her confirmation hearings. The circuit split on incorporation sets the stage for a further appeal to the Supreme Court, and Alan Gura and the National Rifle Association have both filed petitions for a writ of certiorari. Robert A. Levy discusses this in his recent Cato podcast.

It will be interesting to see what the next year brings for the Second Amendment.

New Doherty Book Review

There is a new review of Brian Doherty’s book, Gun Control on Trial: Inside the Supreme Court Battle over the Second Amendment, over at The American Spectator.

The review captures the uphill battle that the Heller litigants faced in the District of Columbia:

When an employee on the Taxicab Commission once suggested that taxicab drivers be able to arm themselves for self- defense, a spokesman for then mayor Anthony Williams said, “The proposal is nutty, and obviously, it would not be entertained seriously by any thinking person.” After D.C. readjusted its laws in the wake of Heller so that guns were no longer prohibited but regulated to the point of making ownership exceedingly difficult, Mayor Adrian Fenty justified it thusly: “I don’t think [the people of D.C.] intended that anybody who had a vague notion of a threat should have access to a gun.” Apparently the mayor doesn’t know or doesn’t care that once a threat is real, it’s probably too late to go through all of the city’s regulatory hoops.

Cato held a book forum for the event, which is available here.  Also check out Reason TV’s videos of Brian discussing this historic legal battle, both before and after the decision came down.

Yes, California, There Is an Individual Right to Keep and Bear Arms

Last June, the Supreme Court ruled in District of Columbia v. Heller that the Second Amendment protects an individual’s right to keep and bear arms, at least in the home for self-defense.  Here’s our own Bob Levy, who masterminded the Heller litigation, talking about that decision:

While the Court’s ruling was a watershed in constitutional interpretation, it technically applied only to D.C., striking down the District’s draconian gun ban but not having a direct effect in the rest of the country.

Well, today the Ninth Circuit (the federal appellate court covering most Western states) ruled that the Second Amendment restricts the power of state and local governments to interfere with individual right to have guns for personal use.  That is, the Fourteenth Amendment “incorporates” the Second Amendment against the states, as the Supreme Court has found it to do for most of the Bill of Rights.  I rarely get a chance to say this, but the Ninth Circuit gets it exactly right.

Here’s the key part of Judge Diarmuid O’Scannlain’s opinion:

We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.”  Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the “true palladium of liberty.” Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later.  The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited.  We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.

In short, residents of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington now join D.C. residents in having their Second Amendment rights protected.  And courts covering other parts of the country – most immediately the Seventh Circuit, based in Chicago – will have their chance to make the same interpretation in due course.

Just as interesting – and potentially equally significant – is the footnote Judge O’Scannlain drops at the end of the above text in response to arguments that the right to keep and bear arms, regardless of its provenance as a fundamental natural right, is now controversial:

But we do not measure the protection the Constitution affords a right by the values of our own times. If contemporary desuetude sufficed to read rights out of the Constitution, then there would be little benefit to a written statement of them.   Some may disagree with the decision of the Founders to enshrine a given right in the Constitution.  If so, then the people can amend the document.  But such amendments are not for the courts to ordain.

Quite right.