Human Events Blog

Nothing is inalienable

 

On Monday, a U.S. District Court judge struck down a Maryland gun law with a remarkably worded ruling, as related by the Baltimore Sun:

In a 23-page memorandum opinion, made public Monday, U.S. District Court Judge Benson E. Legg said a state requirement forcing those applying for a gun-carry permit to show that they have a “good and substantial reason” to do so “impermissibly infringes the right to keep and bear arms,” as guaranteed by the Second Amendment.

“A citizen may not be required to offer a ‘good and substantial reason’ why he should be permitted to exercise his rights,” Legg wrote. “The right’s existence is all the reason he needs.”

Wow, is this guy ever out-of-step with the times!  What is this crazy talk of God-given inalienable rights, which the government is absolutely forbidden to transgress?  Everyone knows that all rights are gifts of the State, to be redistributed or rescinded as the ruling class sees fit.

For example, no American citizen has anything approaching an absolute right to property.  “Progressive taxation” is explicitly premised on the notion that increasing levels of income result in a sharply attenuated right to retain the fruits of your own labor and investment.  In the wake of the Kelo vs. City of New London decision, it was decided that the government can seize your property, not in response to some desperate national emergency, but because it thinks it can use the property more effectively than you can, for “the greater good.”

Or look at the big story bubbling through the news right now, in which our wondrous new government-run health insurance system feels free to discard the religious sensibilities of certain Americans, in order to impose its superior wisdom in the matter of compulsory provision of birth control supplies.  This edict is based on the precise opposite of Judge Legg’s ruling.  Those stuffy old Catholics can’t show any “good and substantial reason” for exercising their religious conscience – not one that compares to the supposedly urgent need of students for “free” contraception in the eyes of the Obama commissars, at any rate – and so their objections are summarily dismissed. 

The ObamaCare mandate in question makes a distinction between actual houses of worship, and institutions (such as Georgetown University or Catholic hospitals) run by religious organizations.  In other words, churches themselves do have “good and substantial reason” for refusing to buy birth control, if it runs contrary to their teachings, but not operations run by the churches.  Cleary, the existence of a right to religious expression is not “all the reason you need” to get out of paying for other peoples’ condoms.

What happens if a religious organization defies the commissars, and refuses to surrender its First Amendment rights?  According to a report in Life News today, “Republicans in Congress asked the Congressional Research Service to examine the new mandate and the consequences for employers that do not want to follow it because it would violate their consciences and CRS issued a document finding noncompliant employers could face federal fines of $100 per day per employee.”  Nothing that costs you a hundred bucks in fines per day is “inalienable.”

You had better forget all about the word “inalienable,” because an expanding State has no use for speed-bump “rights” which limit its ability to act.  The program to re-educate Americans away from such an understanding of rights has been in progress for decades, and it’s worked extremely well.  That’s one of the reasons we should be uneasy with the notion of Republicans campaigning against ObamaCare entirely because it’s unconstitutional.  Of course it is, to the point of being a satirical exercise in Constitution-shredding.  Sure, the Founders would have blessed a gigantic government program that forces citizens to buy stuff from other citizens, under the threat of legal penalty!

The problem is that much of the public has been trained to reflexively discard the notion that benevolent government power should be thwarted by arbitrary limits.  The wise and wonderful State should not be prevented from addressing the vital needs of some citizens, because of an ancient obligation to respect the inalienable rights of others… especially when those others have lots of money.  In other words, the hated Evil Rich cannot demonstrate “good and substantial reasons” why their rights should be respected.

Besides, the modern American citizen has been educated to perceive “positive rights” as physical gifts, bestowed by the State: the “right” to free health care, free condoms, and so forth.  Such “rights” can only be fulfilled through the exercise of compulsive force.  Absolutely nothing is “free,” but many things can be made compulsory.  Understand the difference, and you’ll understand why, contrary to the beautifully stated ruling of Judge Legg, the transcendent existence of your rights is no longer all the reason you need to justify holding on to them.

 

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  • Guest

    When it comes to your rights, use it or lose it.

  • jagscl

    In Maryland, no less.  This Judge ought to be considered for higher court on courage alone.

  • https://twitter.com/#!/davidjkramer DavidKramer

    Hey Romney backers, I have a question for you. If ObamaKillCare is un Constitutional, why isn’t RomneyCare?

    Here is my argument, if a state is not allowed to make slavery legal if it is un Constitutional, then how does the state differentiate that from RomneyCare.

    Now, I will expand on that to include what the court here has just stated, that rights are not fungible and they cannot be limited by states, counties or cities let alone the Feds.

    This is why I have stated that the US Constitution does not allow states to infringe upon guaranteed or inalienable rights. They can work within the framework of the US Constitution and their own individual Constitutions. There are hundreds of examples I could use where I think states are breaking these Constitutional protections. One of them is dry counties. The US Constitution has an AMENDMENT that does not allow the prohibition of alcohol, so how can a local municipality make it illegal?

    I will always bring it back to the slavery component, if the Constitution protects rights at the Fed level than it protects at all levels.

    Class and Case DISMISSED!

  • https://twitter.com/#!/davidjkramer DavidKramer

    Lobotomies might make them smarter by destroying whatever mental disease that creates the surrealistic nightmare they think is reality.

  • TetVet

    That a federal judge in Maryland, of all places, would make such a ruling is the best bit of good political news I’ve heard all year.

    In fact, it might be the ONLY bit of good news I’ve heard all year.

    If this can happen in Maryland, perhaps there is hope for the Republic after all!

  • TetVet

    I take your point. But, there’s a little more to it.

    First, regarding slavery: The Reconstruction-era 13th Amendment is quite clear. It says: “Neither slavery nor involuntary servitude…shall exist within the United States, nor any place subject to their jurisdiction.”

    The clear meaning of the 13th Amendment prohibits states from legalizing slavery.

    Now, it’s true that the 21st Amendment repealed the 18th Amendment’s nationwide prohibition of the importation, export, and use of alcohol for beverage purposes.

    BUT, Section 2 of the 21st Amendment reads as follows:   “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, IN VIOLATION OF THE THE LAWS THEREOF, is hereby prohibited.”

    Clearly, the existing Constitution permits states or localities to enact “blue laws.”

    As far as Obamacare’s “individual mandate” is concerned: The jury, so to speak, is still out.

    It will all depend on whether Anthony Kennedy thinks that the Interstate Commerce Clause (Article I, Section 8, 3rd paragraph)  means that Congress can not only “regulate” commerce, but COMPEL it! When you look at the drift of SCOTUS cases since the New Deal, the answer to that question is not at all clear.

    As far as your statement that ALL of the federal Constitution’s protections extend automatically to the States, that is not historically factual. There have been hundreds of cases that deal with the doctrine of “incorporation,” meaning interpreting the extent to which your assertion is true. That was the issue in the recent McDonald v. Chicago case, where the court decided, 5-4, that the Second Amendment denied the City of Chicago to outlaw the possession of handguns.

    The doctrine of “incorporation” is still “evolving.”

    As a matter of Constitutional technicality, Romney might have a point.

  • TetVet

    And if liberals had lobotomies instead of power in government, perhaps the childrens’ reality might no longer be a nightmare.

  • AKgunguy

    Your words are so true. Up here in Alaska I go to all the Tea Party Rallies etc, at these events I ALWAYS go openly carrying. Things like Independance Day parade I go Open Carry.
    The reason I do so is to show that exercised right to Arms. About 99% of the time I catch a child asking their dad or mom “why does that man have a gun?”
    at least half of those occurances the parent brings the child to me and ask that question. This is my favorite part. I get to explain about Rights Vs Privilges.
    I explain how the Right to Arms is one of our fundemental Rights and our only way to protect the other Rights we have.
    Many of the Children look at me and thank me, All of them except 1 has said “hey Mr.
    you are pretty cool.”
    that makes it all worth while!

  • AKgunguy

    Slavery is Slavery. That should be enough answer……

  • AKgunguy

    Great Post!
    I love the use of McDonald V Chicago in regards to incorporation of rights via I believe the 14th Amendemnt.

  • https://twitter.com/#!/davidjkramer DavidKramer

    Yes, just like most decisions that strip us of our rights, they are always close. At least that one was close on the correct side. I have always found the SC decision on outlawing jury nullification to be one of those I abhor, also a 5-4 decision against.

    The last protection of our rights is in the jury box. When the jury cannot decide the Constitutionality of the law, we are no longer governed by our sovereign selves, we are governed by the black robe society.

    I forgot to look into whether or not the prohibition component had some back doors, I should have.

    As for the incorporation component, one person’s private property can over rule the rights of another’s, like someone not wanting armed citizens to come on their property, but an incorporated city or town using this argument flies in the face of the tenet, they are a government body. If that is the argument put forth as you mention.

  • JayC777

    “On every question of construction let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.”
    - Thomas Jefferson

    Jay
    Looks like the good judge had a Legg up on most other judicial turds.

  • https://twitter.com/#!/davidjkramer DavidKramer

    He is definitely an originalist.

  • TetVet

    Exactly.

    The “incorporation doctrine” is a child of the 14th Amendment.

  • AKgunguy

    I wasn’t sure if it was the 14th but I was agreing with your post.
    Thought you hit it right on.
    I think more judges should stand up for the founding documents
    just the way they are written, instead of trying to interpret their meanings for me. I can read!
    Thanks for yiour service. I spent 5 years in the Corps. Combat Engineers.

  • TetVet

    And I thank you for yours.

    Sempre Fi, bro.

  • Jason Johnson

    We have forgotten that when the state dispenses “rights”, they aren’t rights at all. Rather, they are privileges that can be yanked away at the whim of the tyrannical, overreaching government.

  • terry1956

    Well Maryland( his district does not the whole state) sends Roscoe Barlett to Congress a Conservative pro life Seventh Day Adventist and the second oldest member of the House who are being warning people for sometime to prepare just in case.

  • globalcrap

    Finally a man of courage in the justice department. If the other O Bogus liberal zombie judges would man up, what a safe,and moral  America,  America would be..

  • terry1956

    Well I have no read the judges ruling and he stand for natural law and Anglo/ American law is great but  as a federal judge he has no authority to decide on the matter.      
      First off the federal courts can not legislate 14th amendment enforcement thus everything from the Lockner type decesions by the federal courts in the late 1800s against state regulations of business to Brown versus the Board of Education, to Griswold decsion on Conn. birth control restrictions to Roe V Wade, to Lawrence V Texas, To the Kelo case were illegal federal court decesions.                                    
      Congress must pass specfic legislation to enforce  the 14th amendment on the states and a broad vauge act of congress such as a civil rights act is not specfic enough.              
      Second, even  when congress  has passed the necessary enforcement legislation when a state is a party the case must go directly to the US  Supreme court because article 3 says it has orginal jurisdiction in such cases and appleate in most other cases.    
       Which means the lower courts can not hear the case and the appeals courts are unconstitutional anyway because the supreme court has appeal authority in cases allowed by the constitution and congress.                                                                                       
     
    so its congress that needs to act against these state guns laws, kelo, lawrence, jim crow not the federal courts.                                                                                              
     Also juries and I think the state  constitution of Maryland spells out jury veto authority more than most state constitution but all that have a due process clause jury veto is implied.

  • terry1956

    without the backing of the  specfic legislation by congress on the 13th , 14th, 15th federal court rulings against a state is null and void.                                     
     Romney’s support of the mandate in MASS goes against the grain of basic Anglo/ American legal culture anyway and the tax or fine enforcement may also violate the state constitution by denying a proper jury trial.         
     The amendment to the state constitution allowing intiatives clearly says the right to trial by jury can not be taken away.                  
       The jury has veto authority against the Romneycare and the Obamacare mandates.
     As John Adams said it is the authority, the right and the duty for the jury to judge the law as well as the facts in the case before them.

  • terry1956

    I may be wrong but I don’t think the supreme court ever ruled agaist the jury veto although they have ruled in favor of it and one of its first cases  when it had a jury sitting in on a case with it down in GA. the Chief Justice informed the jury of their authority to judge the law and veto.         
      Now I know the Supreme court has ruled that judges are not required to informed juries of their  veto authority around the 1880s or 1890s.      
       In federal cases that was a clearly wrong ruling because in all federal cases except impeachment a trial by jury is required, bench trials are not allowed at all and informing the jury would be part of the due process requirement in the 5th amendment.                                  
       

  • kipmjf

    The judge is correct, as far as he goes, but the fact that the State requires a permit before you are allowed to exercise a right reduces the Second Amendment to a license or permission over which the State exercises prior restraint.  Whenever that is allowed, your right has ceased to be a right and has become a privilege.

    Whenever a license is required or a tax is imposed upon the exercise of a right, it has ceased to be a right and has become a license or privilege which the government may then revoke at any time. Remember poll taxes?

     Like a schoolboy who needs a permission slip from his teacher before he can go to the bathroom, you need a permission slip from  some State bureaucrat before you can keep and bear arms.   That is  exactly the type of prior restraint upon your freedom that the Constitution was drafted to prevent.

    The logic that allows this will also allow the State to require you to get a permission slip before you travel to another  town, vote, buy property,  open a bank account, buy insurance, speak out against governmental intrusions on your rights, or any other activity that might indicate that you are one of those troublesome  freedom-loving Americans, rather than a serf and servant of the State. How far down this road have we traveled already? 

    Don’t accept the requirement of a tax or license upon any of your rights by any level of government.   Municipal and county governments are even more aggressive than the federal government in their methods of denying your rights by requiring  that you first establish a good reason for wanting to exercise any of your “rights”.  In effect, the State does not believe that you have any rights. 

    The State does not want you to have any rights, because they make you more troublesome to govern.  Every bureaucrat eventually comes to desire a return to the ancient tradition of serfdom, when the government owned the people and everything that was not required was forbidden, and the people were easy to govern.

  • terry1956

    really there is no such thing as incorporation without  specfic congressional enforcement legislation.                               
     The civil rights act of what was it 1866 may have been specfic enough and passed constitutional muster but it mostly was not enforced.  
      The civil rights act of 1965 does not pass constitutional muster because big chunks of it is illegal federal action on private employers and private landowners and the restrictions on state governments are to broad in some areas but to discrimantory in other areas.

  • terry1956

    wrong, the state by requiring a permit or licence can not take away rights.  
      Even when a business or non profit group volunters to ask for the privladge of incorporating by the state government rights can not be taking away by the state government. 
       Yes the state may charge a  annual fee for its service of inc. and it may have some requirments on corporations that natural person firms and groups don’t have but the rules must be known before hand before the firm or group incorporates plus a jury and judge has the authority to veto the rules if the corporation is brought to trial as the jury and judge can do legally on any permit or licence charge.