—Second Amendment to the U.S. Constitution
In
2008, the Supreme Court laid to rest the once-simmering dispute over
the meaning of the Second Amendment. In an opinion written by Justice
Antonin Scalia, the court articulated the modern existence of the
ancient personal right to keep and bear arms as a pre-political right.
A
pre-political right is one that pre-exists the political order that was
created to protect it. Thus, the court held, the origins of this right
are the ancient and persistent traditions of free peoples and their
natural inclinations to self-defense.
The court also characterized
the right as fundamental. That puts it in the highest category of
rights protected by the Bill of Rights. Though the origins of this right
are from an era well before guns existed, the textual language in the
amendment — “arms” — makes clear, the court ruled, the intention of the
Framers that its continuing purpose should be to recognize the right of
people to keep and use the same level of technologically available arms
that might be used against them.
That, in a nutshell, is the
history, theory and purpose of the amendment as the modern Supreme Court
has found them to be. But as we have seen, the constitutional
guarantees that were written to keep the government from interfering
with our rights are only as viable as is the fidelity to the
Constitution of those in whose hands we have reposed it for safekeeping.
In
our system, principal among those are the hands of the president; and
sadly, today we have a president seriously lacking in this fidelity. And
that lack is salient when it comes to the Second Amendment.
Earlier
this week, President Obama announced that he will sign executive orders
that expand the size and scope of federal monitoring of the acquisition
and use of guns — traditionally a matter left to the states — and he
will interpret the laws in novel ways, establish rules and impose
obligations that Congress rejected, and prosecute those who defy his new
system.
The president has very little room to issue executive
orders on guns because the congressional legislation in this area is so
extensive, detailed and clear. In addition to ordering your doctor to
report to the Department of Homeland Security any mention you may make
to the doctor of guns in your home, the president has decreed on his own
and against the articulated will of Congress the obligation of all
people who transfer any gun to any other person to obtain a federal gun
dealer license. This is among the most cumbersome and burdensome
licenses to obtain.
He has also decreed
that any licensee who fails to perform a background check on the person
to whom the licensee has transferred a gun shall be guilty of a felony.
Give a BB gun to your nephew on his 16th birthday without a federal
license and you can go to prison.
Can the president do that? In a word: No.
Under
our system of government, only Congress can write federal laws and
establish crimes. The president is on particularly thin constitutional
ice here because his allies in Congress have proposed this very
procedure as an amendment to existing law, and Congress has expressly
rejected those proposals.
The president is without authority to
negate the congressional will, and any attempt to do so will be
invalidated by the courts. As well, by defining what an occasional
seller is, beyond the congressional definition or the plain meaning of
the words, the president is essentially interpreting the law, a job
reserved for the courts.
By requiring physicians to report
conversations with their patients about guns to the Department of
Homeland Security, the president will be encouraging them to invade the
physician-patient privilege; and I suspect that most doctors will ignore
him.
Under the Constitution, fundamental liberties (speech, a
free press, worship, self-defense, travel and privacy, to name a few)
are accorded the highest protection from governmental intrusion. One can
only lose a fundamental right by intentionally giving it up or via due
process (a jury trial resulting in a conviction for criminal behavior).
The president — whose support for the right to keep and bear arms is
limited to the military, the police and his own heavily armed bodyguard —
is happy to begin a slippery slope down into the dark hole of
totalitarianism, whereby he or a future president can negate liberties
if he hates or fears the exercising of them.
We still have a
Constitution in America. Under the Constitution, Congress writes the
laws, the president enforces them, and the courts interpret them. The
president can no more write his own laws or impose his own
interpretations upon pre-existing laws than Congress or the courts can
command the military.
As troubling as this turn of events is, it
is not surprising. The president is a progressive, and the ideology of
progressivism is anathema to self-help or individualism. He really
believes that the government can care for us better than we can care for
ourselves.
Yet he ignores recent history. Any attempt to make it
more difficult for people to keep and bear arms not only violates the
fundamental liberty of those people but also jeopardizes the safety of
us all. Add to this the progressive tendency to use government to
establish no-gun zones and you have the recipe for disaster we have
recently witnessed. All of the recent mass killings in America — from
Columbine to San Bernardino — have occurred in no-gun zones, where
crazies and terror-minded murderers can shoot with abandon.
That is, until someone arrives with a gun and shoots back. Then the killer flees or is injured or dies — and the killing stops.
See video 'Obama Announces New Gun Plan (Associated Press)' here:
http://www.washingtontimes.com/news/2016/jan/6/andrew-napolitano-obama-has-no-authority-to-issue-/?page=all#pagebreak
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