October 28, 2017

Inalienable Rights and the Founders

Dana Mathewson

For those of you who aren't NRA members (I'm assuming I know who you are), this is one of the best articles on the Bill of Rights I've ever read. It's in this month's issue of America's 1st Freedom, one of the NRA's membership magazines, and was written by a regular contributor, Charles C. W. Cooke, who just happens to the the editor of National Review Magazine. This is some excellent history. I hope you like it.

A lengthy read. Introducing the Bill of Rights before
Congress in June of 1789, James Madison
was careful to cast the exercise in
which he was engaged as an act of political hygiene. Reflecting
upon the Constitution, which had been ratified the previous year,
Madison informed the House of Representatives that while he
had personally believed that the structure of the Document was
sufficient to guarantee liberty in America, he was aware that a
considerable number of his countrymen disagreed.

"The great mass of the people
who opposed it" Madison recalled,
"disliked it because it did not
contain effectual provisions against
encroachments on particular
rights." By amending the charter to
incorporate such provisions, Madison
hoped that the new government
would "extinguish from the bosom
of every member of the community,
any apprehensions that there are
those among his countrymen who
wish to deprive them of the liberty
for which they valiantly fought and
honorably bled." He was, to borrow a
more modern phrase, tidying up the
loose ends.

As is abundantly clear from his
speech, the debate that he was starting
was not one of substance, but of
form. Unlike today, in neither the
Colonial nor post-Revolutionary eras
was there much public disagreement
as to the value of due process, the
freedom of speech, the right to keep
and bear arms, and so forth. Indeed,
among others, these liberties were
regarded by 8th-century Americans
as part of their unalienable birthright
as heirs to the British settlement.

Instead, Madison was addressing a
question of structure; specifically, "Did
a government that had never been
granted certain powers need to be
explicitly stripped of those powers?"
The details, give or take, were broadly
agreed upon -- a fact that Madison made
sure to note aloud. Before outlining
his proposed additions, he assured
the House that he had included only
those "rights, against which I believe no
serious objection has been made by any
class of our constituents."

It is worth revisiting this history
from time to time, if only to gain a
crucial apprehension of just how deeply
cherished were the ideals that are
enshrined in the first 10 amendments.
What Madison was beginning with his
introduction was not a fractious debate
over the optimal top rate of tax, or the
correct zoning formula for businesses
that work with molten steel, but a
communal effort toward the securing
of the national bedrock. There is, in
consequence, no fluff in the ensemble.
The work was straightforward and it
was crucial, quite different in tone
than the quotidian politics of the era.
There is neither fat nor pork on the
Bill of Rights.

This matters, for a host of
reasons -- not the least of which is
that it should remind us that there are
no "unimportant" or "second-class"
provisions therein. Taken together, the
Bill of Rights contains the cream of the
crop -- the individual freedoms and
the structural dogmas that, had they
been left unprotected, would have left
hundreds of thousands fearing for "the
liberty for which they valiantly fought
and honorably bled." To Madison and
those whose anxieties he was hoping to
assuage, it would have been unthinkable
for a government or a court to set these
rights on a scale, favoring some more
than others, or making the possession of
one conditional upon the abnegation of
another. As the recent war had shown,
liberty was held to be indivisible.

Can we say this today? I am not
sure that we can. For years now, Justice
Clarence Thomas has lamented the
unwillingness of our courts to show the
Second Amendment the same deference
and attention as many of the other parts
have received. "The Framers" Thomas
wrote recently, "made a clear choice:
They reserved to all Americans the right
to bear arms for self-defense. I do not
think we should stand by idly while a
State denies its citizens that right."
Thomas, of course, is correct: Too
often, our courts abdicate their role the
moment that firearms are mentioned in
the brief. But more interesting, perhaps,
is his hinting at a parallel problem -- that
too many among us have come to see
the Constitution not as a set of equally
applicable parts, but as an a' la carte
menu to which we might apply our
modern political preferences, and from
which we might pick and choose at
will. "Remember,"Thomas seems to be
saying, 'our job is to apply the law as it
is written. No more, no less."
The problem that Thomas has
highlighted manifests itself in a number
of ways. Most common is that a state
or municipality passes a law that clearly
violates the original public meaning of
the Second Amendment, and then the
courts either find a way to uphold it, or
they simply ignore the transgression.
This approach has been written about
a great deal, including by myself, and I
will not address it here. Rather, I want to
highlight a less frequently noted -- but,
alas, increasingly common -- trend in
our jurisprudence: The use of other
parts of the Bill of Rights to undermine
the Second Amendment.
Consider, if you will, a recent
4th Circuit case, U.S. v. Robinson, in
which the majority ruled that the police
may legally frisk an individual whom
the authorities suspect is carrying a
gun-solely because he is suspected of
carrying a gun. "The danger justifying
a protective frisk," the court ruled,
"arises from the combination of a forced
police encounter and the presence of a
weapon, not from any illegality of the
weapon's possession." Or, put another
way, the court ruled that to exercise the
Second Amendment is itself to provide
the state with "reasonable" suspicion.
Never mind that you may have a
permit -- or, indeed, that you may live
in a state in which permits have been
abolished -- merely to carry a firearm
upon your person is to be stripped of
your sacred defense "against unreasonable
searches and seizures." From the majority's
peculiar angle, there's now an asterisk after
the word "infringed."

Or, at least, there's an arrow,
which runs from the end of the
Second Amendment into the rest of
the Bill of Rights, and which then
leaves the parchment altogether and
rushes headlong into a Rube Goldberg
machine of the 4th Circuit's creation.
Clarifying for the reader just what was
going on in his courtroom, one of the
assenting judges made sure to file his
own, explanatory, opinion. "Individuals
who elect to carry firearms," wrote the
concurring Judge James A. Wynn Jr.,
must "forego other constitutional rights,
like the Fourth Amendment right
to have law-enforcement officers
"knock-and-announce" before forcibly
entering homes. Likewise, it is difficult
to escape the conclusion that individuals
who choose to carry firearms
necessarily face greater restriction
on their concurrent exercise of other
constitutional rights, like those protected
by the First Amendment."

With due respect to Wynn, it is in fact
extremely easy to escape this conclusion.
And indeed, it is necessary that we
do so, for if his way is permitted to
fester, it will eventually obviate the core
purpose of the Bill of Rights, which is to
enumerate certain unalienable liberties
and to protect them from both majority
opinion and judicial balancing games.
In Britain, citizens who wish to own one
of the handful of firearms that are still
legally sold are required to renounce
their other rights in order to enjoy the
privilege. In consequence, gun owners
in the U.K. are subject to unannounced,
warrantless inspections of their homes,
full acquiescence to which is the price of
their securing a license.

Given that Britain has no codified
constitution, such infringements are to
be expected there, as they are expected
in almost every other nation in the
world. In America, though, they are
extremely jarring. To the end of his
assurance that he had selected only
those "rights, against which I believe
no serious objection has been made by
any class of our constituents." Madison
added no veto to be wielded by
assorted jurists in Richmond.
Lest we forget, the right to keep and
bear arms is just that-a right, akin
in kind and in solidity to the rights to
speech, religion, assembly, due process,
a jury trial and so forth. It is not a
suggestion. It is not an outline. It is
not a poem or inscription or couplet
buried inside a time capsule. It is a
right, enshrined in the law.

Moreover, it is equal to all of those
that surround it. Conspicuously
and deliberately missing from the
Bill of Rights is any form of key
or legend; notably absent is any
recorded hierarchy with which to
rank its contents; obviously omitted
was a readers' guide laying out the
order in which its liberties were to
be subordinated or curtailed. The
First Amendment is not first because
it is the most important, just as the
10th was not placed last because it
is an afterthought, and the middle
position of the Fifth and the Sixth
in no way implies their mediocrity.
On the contrary: The Bill of Rights
is a complete work, the substance of
which is non-negotiable from start
to shining finish.

As one would not propose
that the end of a law's text is less
important than its beginning -- or that
one's protection by one statute must by
necessity diminish one's protection by
another -- our courts must not treat the
Constitution as a water balloon whose
shape and contours change in breadth
and depth when pressed by human
hands. A particular government may
favor or disfavor a given part of the
national charter, but it is obliged to keep
such determinations private. There are no
caveats within our oath of office.
Should we relent on this point, the
potential for corruption and shenanigans
is obvious and immense. At present, our
lower court judges are unable to rewrite
the Second Amendment or to reverse
Heller. If, however, we bestow a power to
"balance" what have hitherto been equal
rights, we will be conferring within their
robes a key to the back door, which, if
used with enough skill, could leave all
of our recent victories in tatters. It is not
difficult to imagine the circumstances in
which anti-Second Amendment judges
come to shift their ambitions, such that
instead of frontally assaulting the right,
they merely limit the occasions on which
law-abiding Americans can "keep" and
"bear" without fear.

Worse still, freed up by this
doctrine of "contingent liberty," a new
generation of creative and cynical
judges would strike at the core of the
Second Amendment under the ostensible
guise of upholding the others. Thus, by
forcing conscientious gun owners to
think twice before exercising their rights,
would the fatal rot set in. Prudence
dictates that a homeowner who knows
that by law he can be killed without
consequence will leave his weapon
upstairs when answering that midnight
knock at the door. Likewise, a carrier
who is treated as a presumptive threat to
safety and, therefore, undeserving
of the right to free speech or to be
free from unreasonable searches and
seizures, will stop carrying a firearm
for self-defense. Recalcitrant as a
host of our states remain, Heller
and McDonald together establish
a minimum standard for the
Second Amendment, to which even
California and New Jersey are bound.
How useful will that standard remain
if its exercise becomes subordinated to
the enjoyment of other rights?
And to what new lands will this
modish standard soon roam? It is not
only gun owners who should be wary of
such a development, for there is nothing
written in the stars that would restrict
the practice's application to the
Second Amendment's sphere. Indeed,
one can only wonder in horror where
the innovations would halt. Will
speakers with certain viewpoints be less
entitled to a trial? Will Americans who
refuse to quarter troops in peacetime
be more easily subject to the use of
eminent domain? Might the religious
among us be told that they are allowed
to express their faith, but that doing so
will diminish the protection of other
parts of the law?

There is only one way to avoid the
minefield that would be laid by such
questions, and that is to avoid them
entirely -- to affirm, that is, that we will
not play off the constituent parts of our
settlement in the name of making it
more whole.

Posted by: Timothy Birdnow at 09:01 AM | No Comments | Add Comment
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