Limiting the exercise of rights, and the risks of freedom

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.

— Alexander Hamilton, Federalist No. 84

Alexander Hamilton felt that a bill of rights was not only unnecessary, but dangerous. And in declaring such, as stated plainly above, he also laid a prediction onto the future: that declaring rights into the Constitution will actually be used to claim powers that don’t actually exist. Instead they’ll be used as a challenge by governments to see just how close to the line they can skirt before a particular action becomes an infringement.

Indeed even with the actual declared powers of Congress, this has become the case, basically interpreting the declared powers as being able to do pretty much anything they want. The bastardization of the power to “borrow Money on the credit of the United States” (see Article I, Section 8) is the reason the public debt of the United States (not including intragovernmental holdings) is 13.9 TRILLION USD.

Indeed much of what Congress has done requires an extra-constitutional reading of the Enumerated Powers, much like how Sheila Jackson Lee [D-TX(18)] made a very extra-constitutional interpretation of the Fifth Amendment arguing against a House of Representatives bill to repeal the Patient Protection and Affordable Care Act of 2010.

The Ninth Amendment was a response to Hamilton’s prediction:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

From the Ninth Amendment we have numerous claims of rights that are not enumerated, per se, in the Bill of Rights or anywhere else in the Constitution. Indeed one such right is that of privacy, first recognized by the Supreme Court in Griswold v. Connecticut, 381 US 479 (1965). As I’ve argued previously, the Ninth Amendment is intended to be a fence around the Federal government and the State governments by way of incorporation. Even if the Second Amendment were repealed, the Ninth Amendment would still hold that a person has the right to keep and bear arms:

As such, taking away the Second Amendment, completely nullifying it, does not mean no one can own firearms because the Ninth Amendment and Fourteenth Amendment would still control. As such the only way a ban on firearms can go through is if we have an Eighteenth Amendment equivalent with regard to firearms — and imagine how well that would go over.

Imagine indeed how well it would go over. The history of Prohibition shows just how well it would go over. Which is why the despots in Washington and the various State legislatures around the United States aren’t wanting to go full-tilt into doing this. They know it would be a disaster greater than Prohibition. It would, quite likely, lead to a second civil war in the United States and the largest armed resistance to a standing law ever in US history.

So instead they come as close to repeal as possible, to nullify the operative clause of the Second Amendment without following the Article V process to do it properly. They pass laws that seek to deter the exercise of rights, or put so many encumbrances as possible in place. We’ve seen this with gun rights as well as abortion. Indeed, California has just enacted even more gun laws in an attempt to one-up New York and Illinois as having the most stringent gun control laws in the United States. And there are already declarations of non-compliance by gun rights proponents. And there have been instances wherein civilians have shown up armed to city council meetings and State legislatures as a show of resistance to attempts to enact new gun control laws.

And all the while, gun control proponents say that our Second Amendment rights “are not unlimited”. They’re not incorrect on that mark. Indeed Thomas Jefferson would likely agree with them. But only insofar that that the right to keep and bear arms doesn’t mean the right to shoot anyone you damned well please:

of Liberty then I would say that, in the whole plenitude of it’s extent, it is unobstructed action according to our will: but rightful liberty is unobstructed action according to our will, within the limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’; because law is often but the tyrant’s will, and always so when it violates the right of an individual.

Their fallacy is in saying “Since the Second Amendment isn’t unlimited, we can pass any gun restrictions we want (short of an outright ban), and they’re all perfectly reasonable because your rights aren’t unlimited.” In other words not being unlimited means they can be limited to the point where they might as well not exist.

To borrow the colloquialism, the right to swing your fist ends at my body. The right to swing a melee weapon ends at my body. The right to keep and bear arms ends when you decide to shoot me. In each of these instances, however, you retain your right to assault me only if I have presented a credible threat to your safety or life in a circumstance not of your own creation. At no other time do you have a right to assault me.

And no reasonable person declares that our right to keep and bear arms means we have the right to commit mass murder or shoot anyone. But the presentation of claims against the Second Amendment operates on a presumption of malicious intent by those seeking to exercise their rights. Indeed, one might as well presume that everyone who wants to exercise their First Amendment rights intends to do so only to cause offense or spread hatred. Though the colloquial social justice warrior is one step shy of such a presumption, at least with regard to all white, hetero-normative, cisgender males.

Crime is a risk of freedom generally.

Offensive and hate speech is a risk of the general freedom of speech. Acquittals of terrorists, killers, child pornographers, and child sex abusers is a risk of the general protections of due process, the warrant requirement for searches, and the protection against self incrimination, including the Miranda rule. Drunks, violent drunks, and drunk drivers, whether or not their drunkenness kills themselves and/or others, is a risk to allowing the consumption of alcohol. As is the risk of women being victims of rape and sexual assault.

And armed crimes, including homicides by firearm, and suicides by firearm are risks inherent in the general right of the people to keep and bear arms.

Again crime is a risk of freedom generally, and a risk to freedom when used by despots as justifications to infringe freedom generally.

Indeed the condescending attempts by the government to limit the Second Amendment rights can basically be summarized as such: “Well these mass murderers and criminals show that you generally cannot be trusted with firearms. We’ve let you have your fun with them, but now we need to take them back and can’t let you have them anymore.”

Instead of taking away rights, the idea is to instead go after the minority who abuse them to the demonstrable harm of others. If you wish to prevent that minority from being able to abuse the rights and liberties we all enjoy, you must do so without infringing on the rights and liberties we all enjoy.

In other words if you want to swing your fist, you must ensure that in doing so you assault only the person you intend, and only with demonstrable reasonable justification. This is why responses to gun control efforts following the Orlando massacre include asserting not just the Second Amendment, but also the Fifth and Fourteenth Amendment guarantees of Due Process.

Regardless of how hard we try, you cannot legislate away evil. All attempts fail. Because legislating away evil requires the commission of greater evils. It requires the enactment and empowerment of a despotic government. And those desiring such a government will presume to be immune from the exercise of its power until they discover, usually entirely by surprise, they are not, that the hands of despots reach to everyone, even those who thought they were politically favored.

This is why much of our existing law isn’t about attempting to legislate away evil, but providing a process for responding to it. The problem is so many people think we can legislate away evil that they want to take away the ability for civilians to respond to it, and that is the manifestation of the greater evil that history shows is the inevitability of such desires, and one that society must generally oppose.

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