Antifederalist Robert Yates, a New York judge during the era of the Articles of Confederation who wrote under the name “Brutus” in opposition to the centralizing tendencies of the Constitution, warned that the central government would not only breach our rights, but also that judges in America would excuse those breaches.
He was correct. In fact, he and his other Antifederalist allies might say, “We told you so” when seeing the shocking number of times U.S. judges have allowed local, state, county, or federal politicians to usurp our rights.
Cases in point: two new rulings in California that trash the right to keep and bear arms, cases about which the pop media is virtually silent…
Declan McCullagh recently reported on these cases for Reason. The first case was brought by numerous individuals and the California Rifle and Pistol Association against the Attorney General of California in opposition to the 2016 CA “Assault Weapon Control Act,” an edict foist upon citizens in “response” to the San Bernardino mass shootings of 2015. (That would be an incident where, yeah, you guessed it, the guns were already illegal.)
Regardless, as Hillary Clinton and Rahm Emanuel told other aspiring statists, “never let a good crisis go to waste.” And so the California politicians passed their arbitrary “Assault Weapons Control Act,” which has done nothing to decrease violent crime in California, even as it further stripped people of their rights. They argued:
California plainly infringes that right by completely barring Plaintiffs from acquiring, transferring, or possessing commonly owned rifles that it pejoratively labels “assault weapons”—a non-technical, political term of ever-changing definition and scope with no connection to the public safety interests that the law purports to serve.
But that’s not how an Obama-appointed judge saw it. And, of course, she can determine what rights are. From her chambers on Delphi, she wrote:
‘Even an outright ban on certain types of semiautomatic weapons does not substantially burden the Second Amendment right,’ wrote Judge Josephine Staton, a Barack Obama appointee in Santa Ana, California. Staton suggested that if semiautomatic rifles like the AR-15 were outlawed, California gun owners ‘would be left with myriad options for self-defense—including the handgun…’
Lesson for Judge Josephine Staton: rights are not supposed to be defined by agents of the state. They exist prior to the existence of the state, exist without being subject to attenuation. That’s why they’re called RIGHTS.
The second case, called Flanagan v. Harris, was about the right to carry a firearm anywhere on public, taxpayer-funded land. Land for which the people with gun rights were forced to pay. And, what a shock, an Obama judge ruled… against rights.
In the California carry case, decided Monday by Judge John Kronstadt, another Obama appointee, the California Rifle and Pistol Association argued that the state could not completely prohibit residents from carrying a firearm for self-defense.
But, of course, Judge John disagreed, and refused to hear the case, leaving to stand a lower court ruling against the fundamental right to carry a firearm.
Said His Greatness:
‘The burden that [the state laws] impose, if any, on a right protected by the Second Amendment, is not severe...California's open-carry laws do not infringe upon the “core” Second Amendment right of self-defense within the home…’
Who is he to say that?
And "within the home"? Where's that restriction in the Constitution?
This man actually purports to argue that your right to self-defense stops the moment you step on government-run land, land for which you had to pay on pain of going to jail or losing your home. Incredible. The viper-like venom of that kind of insult is beyond thought.
And something else some folks have tried to point out to our neighbors: it’s about the U.S. Supreme Court case upon which both of these insulting decisions rest.
That case is called District of Columbia v Heller, and was decided in 2008. The Heller case was brought by Richard Heller, who pursued his individual right to keep and bear arms in his home in Washington, D.C., despite the city’s terribly restrictive gun laws and despite the government arguing that the Second Amendment only protected a “group” right.
Many people applauded the majority decision written by Antonin Scalia, a decision in which Scalia spent over 60 pages citing contemporaneous 18th Century observations proving that the Founders believed the right to keep and bear arms is an individual right. But, as nice as that was to see, he didn’t need to go to such lengths. All he had to do was employ logic and explain that rights are, by definition, inherent to individuals, and that the word “group” is just something applied to more than two individuals – groups are always reducible to the individuals that comprise them and who never lose their rights to self-ownership. It’s simple.
And what did Scalia do to add to the problem? At the very end of his decision he wrote that rights can be attenuated.
Which has left room for all of this nonsense in California, and will continue to leave room for more, all over the US.
As harsh as it sounds, Justice Scalia’s opinion in Heller was one of the worst in the history of the U.S. Not only did he leave the door open to future attacks on the right to keep and bear arms, he attacked the very concept of rights themselves, a concept that goes back thousands of years.
So, I suggest that one not be partisan about his or her grumblings when reading about the California troubles. The problem is much bigger than that. It has to do with the very existence of the federal government and power of the feds, especially the oligarchs in the judicial branch, to “interpret away” our rights.
Brutus was right. This is unquestionable. And the attacks will never stop.