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Commonsense= 5-4?

     The rationale and “logic” of liberals never ceases to be a source of amazement.  Earlier this week, the Supreme Court ruled that the 2nd Amendment’s right to keep and bear arms applies to states as well as the federal government.  Based upon their Heller decision two years ago, the only surprising part about the decision is its 5-4 outcome- the same as Heller.  And here lies some of the hypocrisy of liberals and their often unprincipled stances.

     The concept of incorporation of the Bill of Rights into the 14th Amendment is long and complicated.  Basically, past Court rulings have determined that a right found in the first eight amendments basic to the concept of “ordered liberty” and/or engrained in our history and traditions, be incorporated under the “due process” clause of the 14th Amendment and made applicable to the states.  For example, although a grand jury indictment is required under the Bill of Rights as applied to the federal government, it does not apply to the states because it fails to meet those criteria above.  Likewise, the same is true of jury trials for civil trials.  However, the right to free speech, to counsel in criminal cases, etc. meet one or both of the criteria and are applied to the states.

     It is interesting to note that liberals often prefer a broad reading of this legal philosophy.  For example, the presumed right to privacy found in the “penumbras” which allowed for the Court to overturn state abortion laws is a broad reading of the concept.  Yet, in the case of gun laws, they argue there is no need for such a broad reading because to do so would not mesh with their erroneous assumptions and agenda.  However, nothing can be more explicit than the actual words of the 2nd Amendment itself.  A literal reading requires that one need not resort to the creation of “penumbras” or “zones of privacy” and other eloquent, but not scholarly, interpretations.

     The problem, as liberals see it, is the prefatory clause of the Amendment leading to the assertion that it is a collective, not individual right.  I think the Heritage Foundation explained it best through an analogy a few years ago.  For example, a school principal says to the class, “Because your teacher is sick today, there will be no test today.”  It really makes no difference whether the teacher is sick or went to the ball game or whatever; there still will not be a test today.  Likewise, it makes no difference whether a well-regulated militia is necessary for whatever reason- or whether a militia is even necessary at all; the right of the people to keep and bear arms cannot be infringed.

     That being the basic finding in the Heller decision, the next step was whether the right is so fundamental to the concept of ordered liberty or rooted in the traditions and history of the country that it should apply to states.  This is done through the process of incorporation.  The mere fact that it took over 200 years to even address the issue should be proof of gun ownership meeting these requirements predicated upon the basic common law right to self-defense.  And part of the right to self-defense is the right to keep and bear arms.  Therefore, it meets not one, but both of the criteria for incorporation.  So using simple commonsense, the Court could reach no other conclusion and the votes of four justices can be reduced to nothing more than advancing a liberal agenda.

     The liberals are crying foul, that the Roberts Court is advancing a conservative agenda, and that they are an activist court.  They claim the Roberts Court is expanding Federal power through incorporation- an oxymoronic accusation for a alleged conservative Court.  Hypocritically, they now claim that they are the defenders of state’s rights and federalism.  Those arguments were conspicuously absent with the health care debate- indeed, the entire Obama liberal agenda- with alleged rights to “health care” which clearly meet NONE of the criteria above.

     Instead, the dissent of the minority, particularly that of Justice Stevens (good riddance) attacked the historical reasoning of the majority, accused them of judicial arrogance, and insinuated the majority had contempt for the political process.

     As for the history, Alito in his majority opinion, did an excellent job showing the nexus between gun ownership rights, self defense, and the South during Reconstruction.  Specifically, the legislative history of the 14th Amendment frequently addressed state laws that disarmed newly-freed slaves.  Suspiciously, Stevens conveniently ignores these historical facts, or glosses over them as inconsequential to the debate.  It is, in fact, the dissent of Stevens that puts forth bad history through their ignorance of facts.

     As for “judicial arrogance,” if commonsense is judicial arrogance, then so be it!  Regarding contempt for the political process, if the political process infringes or abridges a fundamental right as determined by Heller, then they are bound by oath to strike that law down.  The hypocrisy is really thick here!  While they fret about Roe being overturned when states pass laws restricting access to abortion on demand- a right certainly not rooted in tradition, history, or ordered liberty- Stevens and company are suddenly concerned about abrogation of the political process when it comes to an explicitly stated right.  It appears that contempt for the political process only cuts one way in the mind of a liberal.  They show not only contempt, but also judicial arrogance in creating rights out of thin air- or more accurately, penumbras.

     Most of the liberal scholarly analysis of the decision, in fact, negates the arguments of Stevens and the liberals in this area.  Specifically, Alito’s written opinion does not close the door on gun control laws throughout the country.  Prohibiting felons or the mentally incapacitated from gun ownership, background checks, waiting periods, etc. still stand.  Outright bans, however, are no longer permissible, or any laws that are so restrictive that they are de facto bans.  I would suspect that subsequent litigation in this area will produce an undue burden test on gun control laws.  If anything, one can surmise that gun control laws as enacted through the ppolitical process will be upheld.  Many have stated that the decision will have no effect on existing laws.  There will no doubt be challenges that will take years to be litigated.  Already the City of Chicago is working on a new law that would limit the number of handguns per household, or outlaw gun stores within city limits.

     In another overlooked irony, the Court inadevertently did the Democrats a favor by removing the topic from the political debate this election cycle.  Several commentators have noted that this decision, like Heller, was a 5-4 decision and it leaves itself open to being overturned in the future.  There have been numerous 5-4 decisions in the history of the Court that still stand today (think Roe v. Wade).  I argue that both Hellerand McDonald stand on firmer Constitutional ground than Roe.  And yes, no right is absolute, as Alito notes, but neither can a right be summarily taken away by the State, as Stevens ignores.

     Just as liberals show hypocrisy and double standards with regards to these esoteric legal distinctions, they also show hypocrisy in the practical application of these laws.  Although Chicago claims they took thousands of guns off the streets, did the law decrease violent crime in Chicago?  Arguing that it potentially saved lives is akin to saying Obama’s stimulus saved a certain amount of jobs.  You simply do not have the real answer to either.  And did the D.C. handgun ban have an effect pre-Heller?  Didn’t, in fact, the nation’s capital have the dubious distinction of also being the homicide capital of the country also?

     No- it was Stevens and the liberal wing of the Court that got it wrong!  They got it wrong on so many levels.  The concurrence opinion of Thomas is perhaps one of the most scholarly pieces of writing I have read in a very long time.  Compared to the drivel of Stevens, it clearly illustrates the conservative wing of the Court is the more principled.  It also shows that the sometimes vitriolic and apocalyptic prose of liberals is much ado about nothing.  Their musings are better left to prefatory statements and Preambles, not constitutional law.

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