If Political Rhetoric Does Not Match Constitutional Reality, No Solution Is Possible
Elected Officials Are Obligated To Know The Limits Of Constitutional Government
The shooting of eight individuals, three of whom died, at Berkeley Hall on the Michigan State University campus is an undeniable tragedy. On that point there can be no doubt. Lives were snuffed out in a moment of violence, and our most basic humanity calls us to be mindful and compassionate to the families and loved ones left to grieve over the lives lost.
Still, our human reflex, as individuals and collectively as a society, is to search for a reason, that we might understand why this bad thing happened to these good people, and then to devise a solution, so that this bad thing need never happen again.
Thus it is that Michigan State students turned out en masse on Wednesday to protest for tougher gun laws, and greater restrictions on gun ownership.
Hundreds of people were present at the protest, which began at noon, and the rally eventually turned into a silent sit-down where attendees “listened to student experiences” and stood their ground to demand gun reform legislation.
“We may not be able to take away the pain and trauma that you have experienced, but we stand by you and we will listen to you and we will squeeze you so tight in order to hold you together when you feel that you’re falling apart,” a speaker at the protest said, according to local news outlet WOOD TV 8.
“We can push for legislation and enact common sense gun laws because there’s nothing else we can do. Because thoughts and prayers are not working,” they added.
For them, the solution seems simple and straightforward: eliminate guns and you eliminate the problems of gun crime and gun violence.
Unfortunately—for them and for us—such a solution is neither simple nor straightforward. Rather, it is almost certainly un-Constitutional and thus illegal. Regardless of how people react in the wake of such a tragedy, there is no getting around the reality that government does not have the competence to act in this realm. Within the United States, such government authority does not exist, nor can it. The Second Amendment, as well as the defined powers of Congress, preclude that authority from ever existing.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
While many are well familiar with this particular text within the Constitution, its centrality to these debates warrants its repetition here, so that there is no uncertainty about what is said nor what is meant.
This is not a new debate. The 2019 shootings in Dayton, Ohio, and El Paso, Texas, sparked similar calls for “common sense gun laws”—in particular, the call then was for so-called “Red Flag” laws that would “temporarily” remove a person’s right to keep and bear firearms when they are deemed to be a risk to others or to themselves. Lost in the hue and cry over the twin tragedies was any meaningful consideration of the Constitutional impermissibility (because of the Second Amendment) of such laws.
The debate about Red Flag laws proceeds from the wrong questions. The debate about Red Flag laws centers on the reasonableness of the laws, and the efficacy of the laws, with merely a nod to their Constitutionality, and with no thought at all to the capacity of the Congress to enact Red Flag laws.
Red Flag laws are thus bad law. They require government to exceed its Constitutional authority. Such laws are automatically repugnant to the Constitution and must be immediately considered void.
The call by Michigan State students, no matter how well-intentioned, to “solve” the problem of gun violence with yet more government regulation similarly runs aground on the lack of any Constitutional authority at any level of government to enact such laws.
In the Supreme Court’s landmark case on the Second Amendment right to keep and bear arms, District of Columbia v. Heller (554 U.S. 570 (2008)), the late Justice Antonin Scalia reaffirmed that the Second Amendment did indeed articulate a fundamental right—i.e., one that precedes the establishment of human governance and thus is immune to modification by human governments—to keep and bear arms, and that the right was not predicated upon any participation in a formal militia.
There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.
This individual right, which elsewhere in Heller Scalia correctly identifies as a fundamental right, removes virtually all “common sense gun laws” from any consideration. No matter how much “common sense” there might be in such legislation, the plain text of the Second Amendment precludes government from having any authority to enact such laws.
It is perhaps understandable that Michigan State students, reacting in the immediate aftermath of tragedy, might not pause to consider such Constitutional nuances; they are naturally shocked and horrified by the shootings, and want to see “something” done to ensure such tragedy is never repeated.
It is less understandable, however, when President Asterisk’s handlers write such Constitutionally illiterate comments for him to make as this:
Arguing that “something” be done is all well and good, but it is neither well nor good for any politicians, and especially the President of The United States, to stand in his bully pulpit and offer up commentary that suggests that government has any say in any person’s choice to own any sort of firearm, including “assault weapons”1, or that person's choice to own ammunition magazines capable of holding large numbers of rounds.
Whether there is or is not such a rationale is irrelevant. Neither the President nor the Congress nor any other elected official at any level of government gets to have an opinion on such matters. The Second Amendment’s articulation of the fundamental right to keep and bear arms immediately moots all such judgments.
Similarly, Michigan Governor Gretchen Whitmer’s pandering and virtue-signalling tweet that “the time for only thoughts and prayers is over” is not merely irresponsible but reprehensible.
As a matter of simple humanity, every moment is a time for thoughts and prayers—thoughts and prayers are the basic building blocks of how we connect with one another, and come together to form healthy communities. No good is accomplished by disparaging that which is most essential in every tragedy.
However, it is simply wrong for Governor Whitmer to initimate Michigan will be enacting new restrictions on gun ownership (which is the reasonable implication of her assertion of being in a “unique position to take action and save lives”). The text of the Second Amendment is clear, as is the Heller opinion from the Supreme Court: governments at any level may not infringe a person’s right to keep and bear arms. Heller adjudicated the Constitutionality of a District of Columbia law, and thus joins innumerable other Supreme Court rulings extending the strictures of the Second Amendment to state and local governments.
Governor Whitmer, like all Michigan elected officials, upon entering office swore an oath to uphold both the Michigan state constitution as well as the Constitution of the United States. That oath is administered by law and is legally binding. That oath also removes any notion that she is ignorant of the particulars and the requirements of the US Constitution. She cannot plausibly claim to both uphold either the US or the Michigan state constitution and be ignorant of the provisions of either of them—her own oath of office obligates her to be more Constitutionally knowledgeable than this.
Regardless of what Governor Whitmer might wish to do, regardless of what the Michigan legislature might wish to do, regardless even of what the students at Michigan State University might want Governor Whitmer and the legislature to do, the reality of the Second Amendment, the reality confirmed by Heller, is that neither Governor Whitmer nor the Michigan legislature has the competence to enact even “common sense” restrictions on gun ownership.
The contortions and convolutions of advocates for gun laws, “common sense” and otherwise, fail to address the categorical imperative articulated by the Second Amendment.
This ongoing controversy says more about the reluctance of government to bow to the Founding Fathers' will and subordinate itself to the true sovereigns of this Republic, the American people, than it does about any complexity or nuance of law. Within this Amendment there is neither controversy nor conundrum, and there is no room for either confusion or doubt. The legal principle is clearly and succinctly stated: Government is to have no authority over private ownership of arms. That is the beginning, middle, and end of any discussion regarding either the meaning or intent of the Second Amendment. A plain reading of the text allows for no other understanding.
There simply is no exception given whatosever to the principle that the right of the people to keep and bear arms shall not be infringed. That a particular limitation upon the right might be “reasonable” or an exercise of “common sense” necessarily fails as an argument when there is no textual authority for that limitation.
As the Heller decision elucidates, the grammar of the Second Amendment itself precludes virtually all of the interpretations of the Amendment proffered by those who would infringe the right to keep and bear arms.
One point which I have made previously deserves repeating here: Scalia was guilty of a serious error while drafting Heller when he asserted that the right to keep and bear arms was not itself unlimited.
There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited….
Scalia’s logic is flawed for two reasons:
1) Scalia argues that the right to keep and bear arms is a pre-existing right which the Second Amendment merely codifies.
Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.”
As the right precedes the Constitution as well as the Amendment, and the Amendment merely is the codification of that right, if the Amendment itself does not offer any limitations on that right, there are no grounds for inferring that there are limitations not specified in the Second Amendment.
2) Nowhere does Scalia cite the particular text of the Constitution which both empowers government to decide what those limitations are and grants government the authority to act on those limitations. Even if one were to concede that Scalia was correct to say the right is not unlimited (and I do not concede that), there still is the challenge of establishing which is the precise Constitutional authority by which Congress may act upon that limitation. In fact, Scalia explicitly declines to address the matter by declining to address the constitutionality of a number of common gun restrictions.
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Merely refusing to address the question of Constitutional authority hardly resolves the question of Constitutional authority. If there is Constitutional authority there should be a particular provision of the Constitution one can cite to establish that authority. If there is no such provision one can cite, all claims of Constitutional authority for any question must be considered immediately suspect.
Whenever tragedy strikes, human nature seeks ways to ensure a particular tragedy doesn’t strike twice in the same place. This much is natural and even commendable.
Yet when tragedy does strike is when it is most essential that any search for solutions be grounded in the realities of the situation. When the search for a solution entails changes in the laws by which we govern ourselves, it is absolutely necessary that the sought-after changes be at the very least legal and permissible within our system of laws. Laws and changes to the laws which run counter to any provisions of the United States Constitution can be neither legal nor permissible, and are not solutions to anything, but simply another problem demanding yet another solution down the road.
Gretchen Whitmer is supposed to know this. President Asterisk is supposed to know this. That they do not says much about their fitness to hold any elective office.
We should also note that the term “assault weapon” is fundamentally synonymous with “automatic weapon”, and is a term that is far more inflammatory than it is informational. This alone makes it inappropriate for any serious political commentary in any forum.
Excellent and brave - I plan to read the earlier articles you wrote and linked later. But wanted to applaud you.
Also the evil at work here in particular wants to distract from real solutions of Faith and Family that are under attack and have been by our very leaders for generations. But said evil is now becoming evident almost daily by the decisions made by all institutions esp our Churches.
The devil is real and at work
We need to wake up and fight as if our lives and our families are at stake.
God Bless you Peter.
Dt
People don’t realize that guns actually save lives. Very few people write about that.